ED Medical Directors Face Some Unique Legal Risks
Suits may claim policies, training are negligent
When emergency physicians (EPs) are promoted to a medical director position, they often fail to consider the additional liability risks they face in their new role, says John W. Miller II, a malpractice insurance broker and principal of Sterling Risk Advisors in Marietta, GA.
One issue that emergency department (ED) medical directors must consider is that their physician-patient relationship is of an indirect nature. "Traditionally, medical malpractice policies will cover a physician for their direct patient care responsibilities, or when they are directing a nurse or someone else to provide such care to a patient," Miller notes.
A malpractice suit may allege that the ED medical director’s indirect patient care responsibilities were negligent. These include setting policies, procedures, and protocols within the department. "Medical directors need to be concerned about the liabilities inherent in these indirect patient care responsibilities," says Miller.
Medical Directors Also Named
When EPs are sued for medical malpractice, plaintiff attorneys often name the ED medical director who set the policies and procedures or protocols, alleging that these were inappropriate and don’t meet the standard of care within the community. "There are other exposures that medical directors have for their duties in managing the employee population," adds Miller. "To the extent they do hiring and firing, there might be allegations of wrongful termination, discrimination, or harassment."
A 2012 Georgia case illustrates the types of liability faced by ED medical directors. In this case, a 64-year-old woman died in an ED of cardiac arrest. "The lawsuit filed by the family included the doctors and staff who treated the woman and the medical director of the ER, even though he was not physically present at the time," says Miller.
The lawsuit stated that the ED medical director "was negligent in failing to take adequate steps to ensure that emergency room staff were properly trained on the existence of and proper implementation of ED policies and protocols, including the Chest Pain Standing Orders."1
Here are some ways in which ED medical directors can protect themselves from this type of exposure:
• Ensure that professional liability coverage covers ED medical director duties.
"Hospital systems or large hospitals typically have a directors and officers professional liability policy that will also extend to cover an individual medical director for their duties on behalf of the hospital," says Miller.
If the facility does not allow ED medical directors to be covered by the facility’s policy, says Miller, they can obtain an individual medical director’s liability policy. "This will cover the medical director for any duties that they have to that facility and to the patients of that facility," he explains.
• Routinely update policies and procedures.
"This is one of the most common mistakes that medical directors make," says Miller. "They’ll initially go in and review those policies and procedures and say, Yes, these meet what I consider to be the standard of care in my community.’"
However, ED medical directors often fail to routinely evaluate whether those policies and procedures are still up to date, Miller says.
• Ensure that ED policies and procedures are being followed.
"It is one thing to set the policies and procedures on the front end," says Miller. The ED medical director also has a duty to the facility and its patients to ensure that its policies are indeed being followed.
"Many times, plaintiff attorneys will be critical of medical directors if they don’t fulfill that duty," Miller says. n
- Gaulden v. Green (733 SE 2d 802 - Ga: Court of Appeals 2012).
• John W. Miller II, Malpractice Insurance Broker/Principal, Sterling Risk Advisors, Marietta, GA. Phone: (678) 424-6503. E-mail: [email protected].
