Some malpractice lawsuits stem from what happens when the patient arrived at the ED — the triage nurse misses an emergency medical condition. “If the triage process failed to identify a high-acuity patient requiring expedited care, then a plaintiff could allege the triage nurse breached the standard of care,” says Ryan M. Shuirman, an attorney at Raleigh, NC-based Yates, McLamb & Weyher.
The hospital faces legal exposure in such cases. “The hospital’s duty to care for the patient likely arises as soon as the patient reaches the front desk and is placed in queue,” Shuirman says.
A recent malpractice case involved a pediatric patient with signs and symptoms concerning for infection. The patient’s grandparents offered a limited history. “This likely contributed to the triage nurse not fully appreciating the degree of the child’s illness,” Shuirman notes.
The patient was triaged as lower-acuity. During the three-hour wait, several patients arrived who were triaged as higher acuity and brought back for an evaluation. The grandparents told nursing staff the patient’s condition was deteriorating. By the time of the EP evaluation, the patient was septic and required intubation. “While this appeared to be a case focused on the hospital’s care of this patient, the physicians involved in her care once she was taken to a room were also named in the lawsuit,” Shuirman reports.
The defense experts testified the patient was beyond saving at the time she presented to the ED. The plaintiff presented emergency medicine and infectious disease experts who were prepared to say a quicker response would have saved her life.
The hospital managed to be dismissed from the allegations of inappropriate triage. However, the plaintiff attorney alleged one of the EPs was aware of the patient before she was given a room, and could have intervened earlier. “Thus, while the physicians felt like they were handed a patient without much hope, they were implicated for not moving quickly enough once they had established care of the patient,” Shuirman says.
The defense attorney told the jury it is unusual for a physician to override conclusions from triage, and that triage nursing staff are integral to the efficient operation of the ED. They are relied on daily to identify patients who require immediate attention.
Robert W. Painter, JD, a Houston-based medical malpractice attorney, has seen the same issues arise repeatedly in triage-related malpractice litigation. Plaintiff attorneys in those cases looked at why the patient was kept waiting while others were determined to be more acute, and whether the triage nurse lacked experience.
When there are triage issues in a malpractice case, it is a standard part of written discovery to obtain the triage nurse’s complete personnel file. “This allows exploration of the triage nurse’s educational background, training, and experience,” Painter explains.
Did the hospital fail to create proper policies to guide triage nurses? Plaintiff attorneys find out whether policies adequately addressed a particular clinical situation relevant to the case, or if the policies in some way led to inappropriate assessments of the patient’s acuity. “In my experience, most hospitals have adequate policies,” Painter shares. “The problem is that oftentimes the policies seem to have been put into place to satisfy accreditation requirements.”
Plaintiff attorneys will scrutinize whether staff have been adequately trained on the policies, and whether staff are held accountable to follow them.
Did triage nurses fail to elicit all the necessary information from a patient or family member? “Time after time, I have seen ED cases where the care went off the track from the very beginning because an inexperienced triage nurse got incomplete information about the patient’s condition,” Painter recounts.
After a patient is mistriaged because of missing history, the ED visit goes down the wrong path. “It can create cognitive biases in nurses, physicians, and other providers,” Painter explains.
In one such case, Painter’s firm represented an elderly patient who went to an ED with back pain. The hospital did not allow the patient’s wife to accompany him because of visitor restrictions during the COVID-19 pandemic. The triage nurse took a cursory history, with two important omissions: The patient had started a narcotic and muscle relaxant two days earlier, and he had early dementia.
“As a result, she assessed him as a low fall risk,” Painter says. “He was set to the bathroom independently for a urine sample, and fell and broke his hip.”
In some malpractice litigation, it becomes apparent triage nurses accepted what emergency medical services technicians report instead of obtaining information directly from the patient. Painter also has seen this happen with EPs receiving information from triage nurses.
“In the multidisciplinary delivery of healthcare, there should be an independent assessment at each new link,” Painter asserts. “When it does not occur, there is a violation of the standard of care that needlessly endangers patients.”
Robert W. Derlet, MD, has reviewed many triage-related malpractice cases as an expert witness. These are recurring fact patterns in those cases:
• Triage nurses were inadequately trained. “Triage nurses must have special training. There must be monthly case review sessions for triage nurses,” says Derlet, professor emeritus at the UC Davis Medical Center’s department of emergency medicine.
• Triage nurses make decisions based strictly on protocols or guidelines. “Clinical wisdom and common sense must always be able to increase the acuity category above any protocol or computer guideline,” Derlet says.
In one malpractice case, the plaintiff had presented to an ED with a headache, a common presenting complaint. However, the patient was stooped over, sweating, and needed assistance to ambulate. The nurse made the mistake of relying solely on triage criteria based on the computer-generated ED protocol. The nurse triaged the woman as a level 3 on a five-level triage scale. “The nurse could not use common sense, resulting in a long wait and delay in care for a stroke with a poor outcome — and a lawsuit,” Derlet says.
• Triage nurses were told the patient was deteriorating, but kept the patient waiting anyway. “The nurse must understand that a patient’s condition may change within minutes of an initial triage evaluation,” Derlet says.
Derlet suggests that when a patient (or the accompanying person), complains he or she can no longer wait to be seen, that patient should be fully retriaged. “Too often, I have reviewed cases where the nurse is rude and tells the patient they will just have to wait their turn — when, in fact, they are on death’s door,” Derlet recalls.
In one such case, a young man presented with chest pain and was sent to the waiting room. Over several hours, his pain worsened. The family made repeated trips to the triage nurse to complain, only to wind up in a verbal altercation with the nurse. “The patient had a delayed diagnosis of myocardial infarction causing disabling congestive heart failure, resulting in a lawsuit that was settled out of court,” Derlet says.
Some malpractice lawsuits involve patients who were visibly deteriorating in the ED waiting room but were ignored. “Any patient so sick they lay on the floor needs to be taken into the ED and have an immediate physician exam,” Derlet advises.
One such case involved a 35-year-old man who was referred to an ED with an urgent care physician’s note, stating the patient had appendicitis. The triage nurse documented the abdominal pain as mild, and assigned the patient a low-priority triage category. The ED was overcrowded with long wait times, which was a chronic problem for that ED. “He had a 12-hour wait to see the EP, including time lying in a fetal position on the floor and vomiting. He had a ruptured appendix with complications resulting in a lawsuit,” Derlet says.
In that case, the bad outcome might have been prevented if the triage nurse had simply asked an EP to look at the patient. “If unsure, the triage nurse should not hesitate to get a hands-on physician opinion,” Derlet adds.
• The patient returned to the ED, but triage nurses miss a high-acuity condition on the second visit. “Patients who return within 48 hours are high-risk, and should be triaged at a higher level. This should be required by triage protocols,” Derlet recommends.
In a recent malpractice case, a patient returned the following day after an evaluation in the same ED reporting worsening back pain and new onset of incontinence. The triage nurse told the patient to go to the waiting room. After several hours, the patient was finally evaluated. “But by then, she had permanent sequela from spinal cord compression,” Derlet says. “The case was settled out of court.”
• It becomes apparent triage nurses were overextended and working short-staffed when the patient presented. “Hospital administration must provide resources for triage, including more than one triage nurse during busy times,” Derlet says.
When a triage nurse is overworked and rushed, the risk of errors intensifies. “Hospital administrators may understaff the ED thinking they will save money. But in the long run, it might cost them more when malpractice lawsuits are filed,” Derlet says.
Some malpractice lawsuits stem from what happens when the patient arrived at the ED — the triage nurse misses an emergency medical condition. If the triage process failed to identify a high-acuity patient requiring expedited care, then a plaintiff could allege the triage nurse breached the standard of care.
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