Hospital Boasts on ED Care Could Come Up During Suit
Attorneys monitoring advertisements
Your hospital’s public relations staff may jump at the chance to advertise that patients can expect to see a doctor within 30 minutes in your ED, but claims such as this could easily backfire if a lawsuit involves this issue.
“Plaintiff attorneys will peruse web sites and print ads looking for information that can help them,” says Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods and a former practicing emergency physician. “If you are thinking like a plaintiff’s attorney, the most helpful evidence may be the words and images published by the hospital itself.”
The plaintiff could make it appear that the ED was under administrative pressure to push patients through quickly, he says, and might then depose the ED medical director or others responsible for the effort to decrease length of stay.
“If the claim is that the patient got short shrift by the ED, and the physician didn’t take the time to listen to the patient’s history, that could be bolstered by the hospital’s claim that it gets people through the system quickly,” McMenamin says. “If there is an allegation that that was in some way negligently done, marketing statements such as these could be a way to get to the hospital.”
Although marketing materials do not establish the standard of care for length of stay, says McMenamin, depending on state law, plaintiff’s counsel may be able to argue that the ED effectively created its own standard or, perhaps less implausibly, created a contract that it breached by failing to behave as advertised.
“The jury may say, ‘You guys said you were way better than the standard of care,’” says McMenamin. “There are lots of ED cases where clinicians clearly met the standard of care, but the jury says, ‘We just don’t like the outcome, and therefore, you lose.’” Here are other commonly advertised claims involving ED care that could make a case less defensible:
• The fact that EPs are board certified.
“There are several reasons why accuracy in advertising is important, but one is heightened professional liability exposure if inaccuracies are allowed to creep in,” says McMenamin.
The ED may have a non-boarded moonlighter, or a physician who is board-eligible in emergency medicine but not certified, or a physician who was trained in a specialty other than emergency medicine, for instance. This could easily come up during litigation when the EP defendant submits a CV indicating he or she is not board certified in emergency medicine, when the hospital website clearly states the ED has board-certified EPs, McMenamin explains.
• Excellence in stroke care.
Patients may have much higher expectations after seeing a hospital’s billboard stating, “Our ED is number one in the state for management of strokes.”
“If someone goes there and doesn’t get a great outcome, they will be disappointed, and may be more likely to initiate legal action against you,” 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.
The plaintiff attorney might even argue that the ED should be held to a higher standard of care, says McMenamin, adding that state law may or may not permit such an argument.
“A good plaintiff attorney can put it into the jury’s mind that because the ED advertises how wonderful they are, they should be better than everybody else,” Sacchetti says. “People will be able to twist this one way or the other.”
If the ED advertises that it’s the best in the state in managing pneumonia, for instance, the defense attorney could argue that in light of this, the patient’s bad outcome would clearly have occurred in any ED. “But I think that type of braggart behavior would only backfire on you. The amount of hubris would turn a jury off,” Sacchetti says.
Sources
For more information, contact:
- Joseph P. McMenamin, MD, JD, FCLM, Partner, McGuireWoods, Richmond, VA. Phone: (804) 775-1015. Fax: (804) 698-2116. E-mail: [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. E-mail: [email protected].
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