EPs’ liability exposure could be increased if they feel pressured to deliver on sweet-sounding promises that lead patients to believe they will receive attention quickly, warns Lisa Schmitz Mazur, JD, a partner in the Chicago office of McDermott Will & Emory.
Mazur names this allegation as a primary source of liability risks for EPs: That a patient was harmed because EPs reduced their attention on truly emergent patients to attend to less emergent patients so care would be delivered within the wait-time guarantee timeframe.
“While there are many potential benefits to [posted ED wait times], there seem to be just as many potential risks if this practice is not implemented in a careful and thoughtful way,” says Mazur.
Guarantees Are “Bad Idea”
While some hospital administrators view wait-time guarantees as an effective strategy for improving ED throughput, such guarantees “are a bad idea, disconnected from the realities of emergency medicine,” asserts Mark Reiter, MD, MBA, FAAEM, CEO of Emergency Excellence and residency director at University of Tennessee-Murfreesboro/Nashville. Reiter is also president of the American Academy of Emergency Medicine (AAEM) and authored the organization’s 2014 position statement opposing ED wait-time guarantees.
According to the position statement, wait time guarantees “potentially compromise patient care by forcing emergency physicians to reduce their attention on truly emergent patients to ensure that less-emergent patients are seen within the wait time guarantee interval.” (The AAEM’s complete position statement can be viewed at http://bit.ly/1LpaQEU.)
Reiter is unaware of any malpractice cases specifically involving ED wait time guarantees.
“But I would not be surprised if some had occurred,” he says. “Every day, there are EDs that fail to satisfy their internal wait time guarantees.”
Some of these patients will experience poor outcomes, and delays in care could be a contributing factor. Reiter says a plaintiff attorney could allege either of these things:
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That the EP did not provide enough attention to a critically ill patient, in order to satisfy a wait time guarantee on a non-emergent patient;
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That the hospital and EPs failed to ensure there was enough staffing and capacity to deliver care within their guaranteed wait time.
“Any decent EP practicing good medicine will, at times, fail to satisfy an internal wait guarantee,” Reiter says. “They appropriately prioritize their time to being at the bedside of their sickest patients.”
Reiter adds that wait time guarantees frustrate EPs and nurses who are held to unrealistic expectations and dissatisfy patients because the guarantees are often unmet.
“Or the system is gamed, whereby the busy physician with higher priority tasks provides only a cursory introduction to honor the guarantee, while patients continue to wait afterwards,” Reiter explains.
Reiter’s opinion is that EDs with wait time guarantees face higher potential liability.
“My advice to EPs working under wait guarantees would be to practice good emergency medicine,” he says.
This means focusing time on the critical patients in the ED, even if that means failing to satisfy wait time guarantees on patients that are not expected to be emergent.
Michael Blaivas, MD, FACEP, professor of medicine at the University of South Carolina Medical School and an EP at St. Francis Hospital in Columbus, GA, has seen plaintiff attorneys bring up the ED’s wait time promise during malpractice litigation. However, juries won’t necessarily hold this against the EP.
“If the ED is overwhelmed, waiting times can go from an expected 20 minutes or less to three hours,” Blaivas notes. “Multiple sick patients present, and one among several who are waiting decompensates and arrests.”
The question then becomes whether the patient chose to come to the ED specifically because of the wait time guarantee and would have otherwise chosen a different ED. The plaintiff could strongly suggest this by simply stating, “You have all seen ads from this ED around town saying they guarantee a waiting time of less than 30 minutes.”
“If there are such ads on the roads, many jurors might agree,” Blaivas says. “All the defense can do is argue that it was probably never seen by the plaintiff.”
An ED’s failure to meet posted wait times “may not be a death sentence in a case,” Blaivas adds. “But it could definitely raise questions in the mind of the jury that maybe a patient or family was misled, and someone has to be responsible.”
SOURCES
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Michael Blaivas, MD, FACEP, Professor of Medicine, University of South Carolina Medical School. E-mail: [email protected].
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Lisa Schmitz Mazur, JD, Partner, McDermott Will & Emory, Chicago. Phone: (312) 984-3275. Fax: (312) 984-7700. E-mail: [email protected].
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Mark Reiter, MD, MBA, FAAEM, CEO, Emergency Excellence, Residency Director, University of Tennessee-Murfreesboro/Nashville. President, American Academy of Emergency Medicine. E-mail: [email protected].
