Is ED's Quality Data Legally Relevant?
It could bolster plaintiff's claim
Is it a matter of public record that your ED scored in the lowest percentile in the state for meeting recommended timeframes for administering antibiotics?
If so, "I can't imagine how you can prohibit an attorney on either side from introducing that data," says Alfred Sacchetti, MD, FACEP, chief of emergency services at Our Lady of Lourdes Medical Center in Camden, NJ, and assistant clinical professor of emergency medicine at Thomas Jefferson University in Philadelphia, PA.
"If the plaintiff's attorney can nudge the jury the ED didn't meet the standard of care because look, they almost never meet the standard of care now you are in trouble!" he says.
Underscore Limitations
If the plaintiff alleges that the EP deviated from the standard of care because the patient failed to receive antibiotics in a timely fashion, and the ED has a track record of failing in this regard, that failure could bolster the claim, says Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT.
The defense would then need to have an expert question the validity and limitations of the data in particular, that aggregate data can't be applied to an individual case, says Sacchetti.
If a patient developed an infection following a laceration repair in your ED, for instance, the plaintiff's attorney may try to bring into evidence data showing that the hospital has a higher infection rate than others in the state.
"They will say, therefore, you must have done something wrong," says Sacchetti. "A good expert should be able to take a jury through the difference between aggregate data, which looks at a whole year's worth of people, and what happened in this individual case."
While unimpressive quality data could make a case more difficult for the ED to defend, there are also potential disadvantages for the ED in calling attention to impressive quality data, says Monico.
For instance, the fact that the ED reduced its average length of stay could be an opportunity for the plaintiff to claim that a patient received short shrift because of administrative pressure to achieve a predetermined goal. On the other hand, prolonged length of stay data could open the door to complaints about delayed care resulting from a system issue.
"This could incorporate not only health care providers directly responsible for the patient's care, but administrative personnel, such as the department's medical director, if the issue was negligently addressed," says Monico.
Patient, Not Group
Ken Zafren, MD, FAAEM, FACEP, FAWM, EMS medical director for the state of Alaska and clinical associate professor in the Division of Emergency Medicine at Stanford (CA) University Medical Center, says he has heard of the possibility that a plaintiff's attorney might claim an Emergency Medical Treatment and Labor Act violation and subpoena, for example, every case of chest pain in the previous six months, to see if their client was treated differently from other patients.
"That is a legal quagmire, and what can they prove? They won't be able to subpoena the care in other cases because it is protected health information," he says. "Also, it's unlikely to lead to any discoverable evidence that would be relevant."
Similarly, Zafren says that juries aren't likely to be interested in an ED's overall performance or miss rate, even if this were to be brought into evidence by either the plaintiff or defense attorney.
"The fact that EDs are sending home 2% of people with missed [myocardial infarctions] is well-reported in the literature," he says. "If the miss rate is lower than the average ED, that's wonderful. But the jury is just going to say that the plaintiff is one of the unfortunate ones that got missed."
Sources
For more information, contact:
Edward Monico, MD, JD, Department of Surgery, Section of Emergency Medicine, Yale University School of Medicine, New Haven, CT. Phone: (203) 785-4710. Email: [email protected].
Alfred Sacchetti, MD, FACEP, Chief, Emergency Services, Our Lady of Lourdes Medical Center, Camden, NJ. Phone: (856) 757-3803. Fax: (856) 365-7773. Email: [email protected].
Ken Zafren, MD, FAAEM, FACEP, FAWM, Alaska Native Medical Center, Anchorage, AK. Phone: (907) 346-2333. Fax: (907) 346-4445. Email: [email protected].
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