Expect ED Delays to Be Issue During Malpractice Litigation
Whether an emergency physician (EP) has deviated from the accepted standard of care on the basis of timeframe depends on the facts of the individual case, says Robert D. Kreisman, JD, a medical malpractice attorney with Kreisman Law Offices in Chicago.
"In the end, the standard of care is about medicine and not about wait times," says Gregory M. Nowakowski, JD, an attorney formerly with Rogers Mantese & Associates in Royal Oak, MI. "While attorneys may make a big deal out of a hospital's non-adherence to wait times or some other time-based guarantees, the fundamental question will always be, 'Did the ED physician meet the medical standard of care?'"
In one of Kreisman's cases, the patient presented to an ED vomiting and reporting "the worst headache of my life," shortly after being discharged from the same hospital with a diagnosis of meningioma, which was scheduled to be treated in the coming weeks.
The patient waited several hours to be seen by an EP, who then called the neurologist who had previously diagnosed her. "On the basis of that call and without further re-evaluation, the ED released her," says Kreisman. "It turned out that the patient was in the process of a brain herniation, which led to her premature death later that same night."
The case was settled for $2.1 million, but Kreisman says an analysis showed that the time spent waiting in the ED was not a factor. "The date and time of record entries are essential," he stresses. "The fact that the entries are not timed is often problematic for doctors in explaining why treatment of a patient went wrong."
In another case, both the EP and the hospital were named in a suit involving a young man with a history of heart problems who presented with dizziness and shortness of breath. "The triage nurse chose not to take a complete history that included the patient's heart condition history," says Kreisman. "The man was actually suffering from endocarditis that because of the delay in care and treatment, led to his death." The case settled for $650,000.
If a critically ill or injured patient arrives in the ED and is evaluated as a patient in urgent need of critical care, but treatment is delayed because of other critically ill patients, hospital entries showing that could be utilized in defending a lawsuit for negligence, says Kreisman.
"That circumstance could lead to hospital policy and procedure changes in dealing with multiple critically ill or injured patients when capacity is reached," he says.
Misleading Claims Pose Risks
If EDs advertise wait times of 30 minutes or less, or post current wait times on the hospital's website, these claims could come up during medical malpractice litigation, says Nowakowski. "'Violating' your own wait time rules would be a difficult claim to make," he adds.
However, the plaintiff could argue that corporate policies resulted in understaffed EDs and undue pressure on EPs to rush patients through, and if a patient's care is delayed because a service marketed by the ED isn't available, a claim could be based on the theory of detrimental reliance, says Nowakowski.
Making claims that an ED's stroke, cardiac, or trauma care is equal to or better than a tertiary care center is "asking for trouble," according to W. Ann Maggiore, JD, an attorney with Butt Thornton & Baehr PC in Albuquerque, NM, especially when the ED doesn't deliver the kind of care advertised and a patient has an adverse outcome.
"Besides the obvious pitfalls, plaintiff's lawyers can use this 'false advertising' to support unfair trade practices claims that may circumvent negligence damage caps," adds Maggiore. "Some of these statutes carry stinging penalties."
If a patient's attorneys successfully demonstrate that delayed care resulted from false, deceptive, or misleading advertising statements that drew a patient into an ED that didn't deliver what they advertised, a hospital could be found liable, warns Maggiore.
"One hospital was bold enough to advertise that patients should not travel to the primary stroke center an hour away, but instead to their hospital for stroke symptoms the opposite of what the American Heart Association advocates," says Maggiore. Another hospital received a punitive damages judgment after advertising that its ED had competent physicians and the plaintiff's attorneys proved that the hospital only used non-emergency medicine-boarded physicians in its ED in order to save money. In that case, a patient died after an abdominal aortic aneurism was missed.
"Any ED currently advertising 'no waiting' is asking for trouble because that can never be guaranteed," says Maggiore. "I haven't personally had a case where the 'no waiting' ads have come up, but I expect they will and soon."
Sources
For more information, contact:
Robert D. Kreisman, JD, Kreisman Law Offices, Chicago, IL. Phone: (312) 346-0045. E-mail: [email protected]. Web: www.robertkreisman.com.
W. Ann Maggiore, JD, Butt Thornton & Baehr PC, Albuquerque, NM. Phone: (505) 884-0777. E-mail: [email protected].
Gregory M. Nowakowski, Rogers Mantese & Associates, Royal Oak, MI. Phone: (248) 691-1614. E-mail: [email protected].
Whether an emergency physician (EP) has deviated from the accepted standard of care on the basis of timeframe depends on the facts of the individual case, says Robert D. Kreisman, JD, a medical malpractice attorney with Kreisman Law Offices in Chicago.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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