Unavailable Specialist = Legal Woes for EPs
In one case that was eventually settled, an on-call specialist admitted making no effort to come in promptly, stating that traffic would be untenable for an hour because it was near the end of a Chicago Bulls playoff, recalls Tom Scaletta, MD, FAAEM, chair of the ED at Edward Hospital in Naperville, IL, and the emergency physician (EP) quoted the specialist verbatim to make it clear why a transfer was initiated.
“In such cases, it is important for the EP to document factually and unemotionally the efforts he or she made in order to do what was best for the patient, given resource limitations,” he says.
In addition, the EP must exhaust all possibilities, such as calling another specialist on staff that is not on-call, says Scaletta. “The chief-of-staff and supervising department chair should be notified and asked to intervene,” he says. “As well, the on-duty administrator or hospital attorney should be alerted while such situations are unfolding.”
Explain Delays
The Emergency Medical Treatment and Labor Act (EMTALA) and medical staff bylaws dictate how on-call obligations are managed, says Scaletta. “If a call schedule is posted for a particular specialty, there better be a great reason an external transfer within the scope of that doctor’s expertise was initiated,” he says.
However, Scaletta says it is understandable that certain specialists are available on an occasional basis. For instance, if there is only one neurosurgeon on staff, then it is permissible to have many holes in the schedule, and EMTALA permits the on-call neurosurgeon to be on call at more than one hospital.
“If a patient arrives and the physician is operating across town, it is reasonable for the patient to be transferred either to where the neurosurgeon is operating or to a tertiary center, whichever is best for the patient,” says Scaletta. “Defense in malpractice suits may be strengthened by EMTALA compliance and unwinnable by EMTALA ignorance.”
Hospital services, too, are subject to reasonable levels of availability. “If a hospital has limited hours of operation for a certain technology, that ought to be spelled out in the marketing fine print,” Scaletta says. “Delays in treatment for a time-sensitive problem, which result in damages, need to be rationally explained.”
It is understandable, for example, that time to percutaneous coronary intervention lengthens after hours or on weekends because the catheterization lab staff generally need to be called in.
Centers of excellence may be better able to convince a jury that negative outcomes are sometimes unpreventable and do not necessarily equate to malpractice, says Scaletta.
“Still, when a standard of care is clearly unmet in a center that claims to be better than most, juries are not sympathetic,” adds Scaletta. “And even if a hospital is not a center of excellence in a particular area, no plaintiff accepts substandard care.”
Pull “Documentation Trigger”
Andrew Lawson, MD, FACEP, CPCC, acting director of quality assurance and quality improvement for the emergency physician group at Mission Hospital Regional Medical Center and principal of Lawson Coaching and Consulting, both in Southern California, says the EP should tell the consultant, “I am concerned for this patient. I am asking for your help. Can you please come in right away?”
If the consultant still refuses to come to the ED, Lawson says “it all comes down to documentation. It’s important to be clear about what you actually said to them,” he says. “Ask them what time you can expect them, so that can be documented.”
Lawson says, however, that EPs should “pull that documentation trigger carefully — when you have a really sick patient or a critical situation. And I think it is only fair to tell the specialist what you are documenting.”
The EP should document, for instance, “I was concerned for this patient. I asked the surgeon to come in immediately,” and specify what he or she is concerned about. Lawson says that when reviewing charts, he sees this type of documentation only very rarely.
While contemporaneous documentation is protective legally for the EP, the plaintiff attorney “may still find a loophole to keep them in,” says Lawson. “If the patient is sitting right next to you, then you will be hit a lot harder than a physician outside the ER who can claim that he wasn’t told of all the findings.”
Sources
For more information, contact:
- Andrew Lawson, MD, FACEP, CPCC, Lawson Coaching & Consulting, Newport Beach, CA. Phone: (949) 400-5216. E-mail: [email protected]. Web: www.thelawsuitcoach.com.
- Tom Scaletta, MD, FAAEM, Chair, Emergency Department, Edward Hospital, Naperville, IL. Phone: (630) 527-5025. E-mail: [email protected].
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