By Stacey Kusterbeck
Emergency medicine is an inherently high-risk specialty regarding malpractice liability because of complex cases and a fast-paced environment.1-3 “The practice of emergency medicine carries significant medical-legal risk. Understanding the characteristics of malpractice cases is important for academic and community emergency physicians, and for practice administrators,” says Peter S. Antkowiak, MD, MPH, a clinical instructor of emergency medicine at Harvard Medical School.
Increasingly, EDs are staffed by advanced practice providers (APPs).4,5 It is unclear whether this changes liability for EDs and, if so, in what way. There is significant variation, both geographically and at the institutional level, for oversight of nurse practitioners (NPs) and physician assistants (PAs). This adds to the legal complexities. “The broad scope of practice permitted in some settings, and the variability in advanced practice provider supervision, creates potential for malpractice risk for supervisory physicians,” Antkowiak warns.
Emergency medicine residents also are exposed to significant risk throughout their postgraduate training. They were named in 13% of 845 malpractice claims from 2009 to 2013.6 “There is very little literature that evaluates the characteristics of malpractice claims in emergency medicine by case type, practice setting, or provider type,” Antkowiak notes.
Antkowiak and colleagues analyzed 5,854 malpractice claims occurring in the ED from 2010 to 2019.7 Of these cases, 3.3% involved an NP, 8.8% involved a PA, 9.1% involved a trainee, and 78% involved no NP, PA, or trainee. The total gross indemnity paid was more than $1 billion. “The cost associated with malpractice defense is substantial. This cost, and the inherent risk of emergency medicine, impacts all provider types — attendings, resident trainees, PAs, and NPs,” Antkowiak says. Key findings include:
- APPs and trainees comprised 21% of malpractice cases and 33% of the total gross indemnity paid.
- Malpractice claims where a trainee was involved accounted for the highest average gross indemnity paid.
- Malpractice claims with no NP, PA, or trainee identified as substantially involved in the adverse event that led to the lawsuit had the lowest average gross indemnity paid.
- NP and PA cases were more likely to involve clinical judgment, documentation, and supervision, compared to cases where no NP, PA, or trainee was involved.
- NP- and PA-related claims had a lower percentage of high-severity cases (such as loss of limb or death) compared to cases with no NP, PA, or trainee involved.
“As the use of mid-level providers increases in the workforce, it is imperative that emergency physicians and hospital administrators are aware of the malpractice risk involved with supervision of APPs and residents in the ED,” Antkowiak says.
Julye Johns Bailey, JD, sees these allegations in malpractice claims involving ED residents:
- failing to obtain a full history and perform a full physical;
- failing to inform the ED attending of all relevant findings;
- failing to timely escalate to an ED attending for conditions (such as cardiac complaints, sepsis, or strokes) that require treatment within a certain window of time;
- failing to carry out the orders and/or recommendations of the ED attending.
“This may be further complicated if there is a shift change of the attending physicians while the resident remains the same,” adds Bailey, a healthcare attorney at Huff Powell Bailey in Atlanta.
In Bailey’s experience, APPs and residents face similar malpractice allegations. “NPs and PAs may have more leeway to discharge a patient even without the ED attending seeing the patient, which would be unusual if the patient was only seen by an ED resident,” she notes. Depending on state law, attending physicians can face legal exposure for the actions of the NPs and PAs even if they did not see the patient themselves.
Another area of liability exposure for ED attendings involves consults. At teaching facilities, ED attendings sometimes speak with residents as opposed to the attendings. Sometimes, residents have already conferred with their attendings before they make recommendations to the ED attending. Even so, says Bailey, “Plaintiffs’ attorneys may argue that the ED attending deferred to a ‘trainee.’ Ultimately, the ED attending is responsible for the orders issued, or not issued, in the ED.”
Even if there is a specialist consulted, the ED attending is liable for the actions taken in the ED, especially if the specialist did not actually see the patient in the ED. Bailey would like to see this documentation in the ED medical record: that the discussion was held, to whom the ED attending spoke, when the discussion occurred, and what information was conveyed to the consultant. To reduce malpractice risks, Bailey suggests EDs use these practices:
- The resident, NP, or PA should present the patient to the ED attending in the presence of the patient’s family, if possible. “This allows the family to chime in if needed,” Bailey says. Patients may omit information regarding medication usage, pertinent medical history, or illegal drug interaction. They also might withhold some information until they think they are seen by the “main” or lead physician.
- Consider using scribes to provide the ED attending with a more comprehensive history and physical to review.
- Have a clear practice in place regarding which patients need to be seen by an attending EP before discharge and which conditions require an attending to become involved sooner (e.g., those with cardiac complaints, strokes, or sepsis).
- If there is a change of attending physician during the resident’s, NP’s, or PA’s shift, clearly designate the oncoming attending. “The resident, NP, or PA should document any and all discussions that occurred with both attendings,” Bailey says.
REFERENCES
- Carlson JN, Foster KM, Pines JM, et al. Provider and practice factors associated with emergency physicians’ being named in a malpractice claim. Ann Emerg Med 2018;71:157-164.e4.
- Jena AB, Seabury S, Lakdawalla D, Chandra A. Malpractice risk according to physician specialty. N Engl J Med 2011;365:629-636.
- Wong KE, Parikh PD, Miller KC, Zonfrillo MR. Emergency department and urgent care medical malpractice claims 2001-15. West J Emerg Med 2021;22:333-338.
- Gettel CJ, Schuur JD, Mullen JB, Venkatesh AK. Rising high-acuity emergency care services independently billed by advanced practice providers, 2013 to 2019. Acad Emerg Med 2023;30:89-98.
- Gettel CJ, Courtney DM, Janke AT, et al. The 2013 to 2019 emergency medicine workforce: Clinician entry and attrition across the US geography. Ann Emerg Med 2022;80:260-271.
- Gurley KL, Grossman SA, Janes M, et al. Comparison of emergency medicine malpractice cases involving residents to nonresident cases. Acad Emerg Med 2018;25:980-986.
- Antkowiak PS, Lai SY, Burke RC, et al. Characterizing malpractice cases involving emergency department advanced practice providers, physicians in training, and attending physicians. Acad Emerg Med 2023;30:1237-1245.
Emergency medicine is an inherently high-risk specialty regarding malpractice liability because of complex cases and a fast-paced environment. Increasingly, EDs are staffed by advanced practice providers. It is unclear whether this changes liability for EDs and, if so, in what way.
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