If a patient’s bad outcome is clearly due to inadequate ED nursing staffing, the emergency physician (EP) on duty could end up being liable, even if he or she provided entirely appropriate care.
"If something is truly not in the EP’s control, the EP should not end up being the one that goes down. Unfortunately, in our legal system, under certain circumstances, that can happen," says Robert Suter, DO, MHA, professor of emergency medicine at UT Southwestern Medical Center in Dallas, TX.
EPs have little input over how the ED is staffed, he acknowledges, and even ED medical directors who have a responsibility to work with the hospital to assure proper staffing have only limited influence.
"The fact that there are risks for the EP involving staffing really goes under the Life’s not fair’ category in the legal system," says Suter. "If the ED isn’t staffed appropriately, the EP faces a difficult choice."
If staffing is not improved, does the EP stop working at the hospital? Or, in the case of a group, should the EP cancel the contract? "These situations are potentially transient," notes Suter. An EP may take a position at a hospital with good staffing, but that can change over time due to a change in administration or ownership.
ED physicians face these legal risks involving nursing staffing:
The plaintiff attorney can argue that inadequate staffing contributed to the patient’s bad outcome.
"If that’s the plaintiff’s theory, they are going to sue the hospital. But it’s very rare that only the hospital will get sued," says Suter. It’s likely that the EP on duty will also be named, particularly whoever cared for the patient. "Even if in retrospect it appears that their care was good, and they had nothing to do with what happened, the EP is probably going to be pulled into it," says Suter.
The Centers for Medicare & Medicaid Services (CMS) has made it clear that EPs can be held accountable for Emergency Medical Treatment and Labor Act (EMTALA) violations involving hospital-controlled issues.
"CMS has shown this to be true in multiple cases, as unreasonable as it might seem to most practicing EPs," says Suter. This is the case even when the EP is completely unaware that nurses are not doing things in a timely manner, such as bringing back patients, because they’re understaffed.
"You could be on duty work-ing very hard and have no idea whatsoever, but CMS may go ahead and include you as the EP on duty in an EMTALA violation," says Suter.
The plaintiff can use the "captain of the ship" legal theory.
"Attorneys still use this ap-proach to hold the EP accountable for everything that’s going on — even when this theory seems ridiculous to anybody who’s ever worked in an ED," says Suter.
Suter has seen cases in which the EP was named in a lawsuit where the plaintiff linked the patient’s bad outcome in part to poor staffing. Whether the EP is ultimately found to be responsible in such a case depends on the judge or jury. "There have been cases where there was nothing the EP could have done. Yet the judgment could still end up against the EP," says Suter.
EPs typically face tremendous pressure to settle such cases, even when the outcome clearly wasn’t their fault. "Those settlements can be large, and they certainly will follow the EP for the rest of their careers, no matter how unfair they were," warns Suter.
This is particularly true if there is a sympathetic plaintiff, because of the cost of defending the claim and the risk that the EP will still be found liable, says Suter, "even in cases where absolutely no liability should be attached to the EP."
EP May End Up Only Defendant
Plaintiff attorneys often don’t initially understand who actually controls the ED’s operations, and, therefore, may name both the EP on duty and the hospital. In this scenario, it’s possible the hospital may quickly step in to make a settlement offer.
"It may be a multimillion dollar lawsuit and the hospital is 100% responsible for the situation, but the hospital settles for a few hundred thousand and is dismissed from the suit," says Suter.
This leaves the "innocent" EP as the sole defendant. "I have seen this before when there is, for example, an injured child and no other defendants. The judge or jury just wants to do something for the plaintiff, and the EP gets stuck with the big verdict," says Suter. "Things like this happen in our legal system all the time." He recommends these practices to reduce legal risks:
Avoid documenting concerns about nursing staffing in anyone’s medical record.
Instead, bring up concerns with the ED medical director or group, but do so with caution. "You do need to be very careful about how you express these concerns," says Suter. "Be very positive and focused on improving patient care and reducing risk for the hospital and your group."
Suter recommends outlining such concerns in an email or letter to the medical director or the hospital’s nursing director, such as "I will do everything possible to provide the best care to patients with the staffing resources provided. I understand that ED staffing is not my decision, but I am concerned that at times, we may need more staffing than we have to give the best possible care. I appreciate any efforts to improve the situation and am happy to dis-cuss it further with you."
"Keeping this documentation in a safe place could potentially provide you some protection down the road," says Suter.
Show patients and family you are doing all you can under difficult circumstances.
"Don’t draw their attention to the fact that the ED is under-staffed," says Suter. Instead, the EP can state the obvious — that it’s very busy and that staff are doing everything they possibly can for all the people who need help. "One of the best risk management tools you have at your disposal is being nice and showing genuine concern," says Suter.
Suter has seen cases in which the EP was not named in a suit specifically because the patient or family had a high opinion of him or her.
"There’s always a chance that they will tell the attorney, We don’t want to sue the ER doctor, because he or she was the one person that was doing everything they possibly could,’" says Suter.
- Robert Suter, DO, MHA Professor of Emergency Medicine, UT Southwestern Medical Center, Dallas, TX. Phone: (214) 648-4838. E-mail: [email protected].
