Could New ED Boarding Standards Become Legal Standard of Care?

Could New ED Boarding Standards Become Legal Standard of Care?

Joint Commission rules could come up during malpractice suits

In a recent medical malpractice case involving a child being held in the emergency department (ED) while waiting for an inpatient bed to become available, "the patient was more or less forgotten," says Michael M. Wilson, MD, JD, a Washington, DC, health care attorney.

"The ER thought that the attending was taking care of the child and vice versa. The child died soon after arrival to the floor," says Wilson. The case settled for an undisclosed amount.

Boarding is a challenge for all EDs, "but the literature strongly suggests that throughput is the real issue," says Dan Groszkruger, JD, MPH, principal of San Diego-based rskmgmt.inc — as patients tend to be boarded while waiting for an acute care bed to become available.

The Joint Commission standard requiring hospitals to set goals for curbing the boarding of patients in the ED, and recommendation that boarding times should not exceed four hours goes into effect in January 2014.

The standard won’t necessarily be considered the legal standard of care in a courtroom. However, it would be hard for a defendant attorney to argue against national standards — even if that standard is not considered a legal standard, says Glenna Schindler, MPH, RN, CPHQ, CPHRM, a risk management specialist at Endurance Insurance in Chesterfield, MO.

"Certainly, CMS [the Centers for Medicare & Medicaid Services] sets legal standards of care," says Schindler. "As The Joint Commission has deeming status for Medicare standards, it could be argued that The Joint Commission standards are the legal standards. But it might be a hard argument."

EP’s Credibility at Stake

National professional organizations are also setting standards that contribute to the development of national standards of care in EDs. "I don’t believe that four hours is going to become the standard of care," says Schindler. "I have not heard of a plaintiff attorney that has argued that The Joint Commission standards set legal standards of care."

Regardless, a plaintiff attorney could cite The Joint Commission boarding standard to put the defendant emergency physician (EP) on the spot to explain why the standard wasn’t met.

"The emergency physician’s credibility could be at risk if the attorney went down that track," says Kathy Dolan, RN, MSHA, CEN, CPHRM, a senior risk management consultant at ProAssurance Casualty in Madison, WI.

"If you are a Joint Commission-accredited facility, you paid good money to be held to that standard," says Dolan. "Failing to meet the standard could raise concerns about the facility as a whole: What other standards are they failing to meet?’"

In 2014, hospitals must begin reporting five ED crowding-related measures to CMS, under the Hospital Inpatient Quality Reporting Program initiative. "Plaintiff attorneys have sometimes attempted to use the public reporting of other CMS measures in malpractice cases," notes Schindler.

Groszkruger says the obvious challenge for EDs is their inability to predict patient demand, except in very general terms. When the waiting room is full and the ambulances are backed up at the emergency entry, boarding will occur unless there are sufficient available beds to accept all those patients after they receive emergency care.

"Any arbitrary limit adopted by The Joint Commission will hold potential for impact on the standard of care," says Groszkruger. "Courts will not adopt The Joint Commission standards, per se."

However, experts will be in a position to testify that The Joint Commission is a voluntary standard-setting organization, and that limits on boarding are important for patient safety. "Therefore, expert witnesses will testify that The Joint Commission standards affect, practically speaking, the legally recognized standard of care," he says.

Eliminate Prolonged Boarding

Groszkruger says that at a minimum, EPs involved in a malpractice suit involving a boarded patient will have to demonstrate that they have done everything reasonably necessary to minimize the duration of boarding in the ED.

Frederick Blum, MD, FACEP, an associate professor in the Department of Emergency Medicine at West Virginia University in Morgantown and attending physician at West Virginia University Health Care, says he expects The Joint Commission standard will help to eliminate prolonged ED boarding and, therefore, reduce liability exposure for EPs. "We all believe that ED boarding is a major risk," he says. "It is not clear to me at this point how hospitals will operationalize this new standard. That will have a major influence on how this plays out."

Blum is not concerned about The Joint Commission boarding standard increasing liability for EPs. "I, like many ED physicians, believe that ED boarding, and the crowding that comes with it, to be the largest root cause of medical liability risks that we face," he says. "Anything that will reduce these can only help."

Sources

For more information, contact:

• Frederick Blum, MD, FACEP, Associate Professor, Department of Emergency Medicine, West Virginia University, Morgantown. Phone: (304) 293-2436. E-mail: [email protected].
• Kathy Dolan, RN, MSHA, CEN, CPHRM, Senior Risk Management Consultant, ProAssurance Casualty, Madison, WI. Phone: (608) 824-8308. E-mail: [email protected].
• Dan Groszkruger, JD, MPH, Principal, rskmgmt.inc, San Diego, CA. Phone: (619) 507-0257. E-mail: [email protected].
• Glenna Schindler, MPH, RN, CPHQ, CPHRM, Risk Management Specialist, Endurance Insurance, Chesterfield, MO. Phone: (636) 681-1208. E-mail: [email protected].
• Michael M. Wilson, MD, JD, Michael M. Wilson & Associates, Washington, DC. Phone: (202) 223-4488. E-mail: [email protected].