By Stacey Kusterbeck
In crowded ED waiting rooms, many patients are not timely reassessed — or at all. Inevitably, some of those patients experience disastrous outcomes. “When a patient collapses, becomes unconscious, or dies in the ED waiting room, a lawsuit is likely,” warns Andy Walker, MD, MAAEM, a Signal Mountain, TN-based emergency physician (EP) who offers legal consulting for defendant EPs.
Sometimes, a lack of reassessment becomes the focus of a malpractice claim, with multiple defendants. “An emergency physician is named as a plaintiff, along with the hospital, even if the patient died in the waiting room without ever seeing a physician. The triage nurse is named, too, as a hospital employee,” Walker says.
There are times when EP defendants argue they should be dismissed from the suit because there was no established physician/patient relationship. In Walker’s experience, such arguments usually are unsuccessful. This puts the EP in a difficult position, since he or she likely had no idea about what happened in the waiting room.
“Unfortunately, the door-to-doctor time in an ED and conditions in the waiting room are largely beyond an emergency physician’s control. It is completely up to the hospital, and sometimes a corporate staffing company,” Walker observes.
For many hospitals, improving ED throughput is not a priority. Administrators might continue to staff the ED inadequately, despite EP concerns. Similarly, leaders might continue to allow admitted patients to be boarded in EDs for extended periods due to a lack of available inpatient beds. Such inaction can result in crowded waiting rooms full of patients who are never reassessed.
“The best an emergency medical group or emergency physician can do is prepare for the inevitable lawsuit,” Walker laments.
For EPs concerned about liability when patients are not reassessed in waiting rooms, Walker offers some recommendations:
• EPs can advocate for hospital leaders to take steps to move patients out of the waiting room and into ED beds promptly. “Save all such documentation for your defense. The same is true of similar warnings to your corporate staffing company, if applicable,” Walker says.
In the event of malpractice litigation, the defense could use a “paper trail” to show the ED group or individual EP tried to do something about unsafe conditions. It also shows someone warned the hospital of those unsafe conditions. “Not only will that generate sympathy from a jury, it might convince the hospital to settle with the plaintiff,” Walker suggests.
The hospital might agree to pay damages to the plaintiff on the condition the EP or ED group is dismissed from the lawsuit, thus sparing the hospital public embarrassment. “The threat of exposing the hospital as callous and uncaring, and willing to risk waiting room catastrophes rather than spend money on adequate staffing or other measures to improve ED throughput, gives the EPs tremendous leverage,” Walker adds.
• EPs can urge administrators to keep policies and procedures for reassessment flexible and nonspecific. “Although the P&P manual is not the standard of care, it is portrayed that way by plaintiff’s attorneys,” Walker explains.
Juries often are impressed when a plaintiff can show an ED violated its own policies. Then, the defense is left to explain why it was not possible for the EP to comply with the policy. Alternatively, the defense must explain the policy does not constitute the legal standard of care to which the EP should be held.
“While a bad policy and procedure can be overcome at trial, why make things easier for the plaintiff’s attorney?” Walker asks.
For example, some ED policies specify that nurses should reassesses patients in the waiting room at specific intervals (e.g., every 30 minutes). “This is ridiculous when there is one triage nurse, 30 patients in the waiting room, and a new patient coming through the doors every 15 minutes,” Walker says.
The problem is the policies do not allow for any wiggle room. “It is impossible to comply with such policies unless there are enough staff on duty to meet those policy demands,” Walker notes.
If policies are less specific, it is less likely the plaintiff will be able to use those policies against defendants. For example, a policy for reassessment might state, “When not triaging new patients, the triage nurse will reassess patients who have been in the waiting room for a prolonged period whenever practical.”
Another concern is few ED nurses or EPs even know what is in the policies and procedures manual. “Whether doctor or nurse, we see the manual briefly once during new employee orientation — and then never again,” Walker reports.
The reality is most policy manuals are not written by physicians and nurses trying to improve patient care. “They are written by administrators and lawyers trying to protect the hospital from lawsuits, usually by throwing doctors and nurses under the bus,” Walker argues.
Thus, many policies for reassessment are entirely unrealistic. “Doctors and nurses are guided by their training, experience, and the scientific literature — not by administrative regulations that are often completely out of touch with reality,” Walker asserts.
• If someone collapses in the waiting room or is found to be seriously ill when placed in an ED bed after a prolonged stay in the waiting room, EPs can document the reasons for the delay in care. EPs might be tempted to document inflammatory statements, such as “We warned the hospital administrator that this was going to happen.” While that might be true, accusatory statements only serve to pit defendants against one another.
Walker says a better approach is to stick to objective facts to allow for the possibility of a unified defense. For instance, an EP might document “Tonight, there are two nurses and a single physician, all 20 beds are full, eight of those 20 are critically ill, and there are 40 patients in the waiting room.”
“Keep accusations and recriminations out of the medical record, no matter how justified they may be,” Walter cautions. Even so, a unified defense is going to be tricky in any case with multiple defendants alleging that nobody reassessed a patient whose condition deteriorated during the wait.
“By their very nature, malpractice suits based on an overcrowded, understaffed ED and prolonged wait times will pit the emergency physician against the hospital, staffing company, or both,” Walker says.
EPs can take some proactive steps. Familiarity with the details of professional liability coverage and employment contracts is a good place to start. Walker says EPs should seek answers to these questions: Who will provide the EP’s defense attorney? Who will pay for the defense? Will the EP be represented by the same attorney as the hospital? “Know the answers to these questions now, not after the lawsuit is filed,” Walker warns.
An attorney offers some recommendations for emergency physicians concerned about liability when patients are not reassessed in waiting rooms.
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