Coroner calls ED death a homicide — Some predict chilling effect
Coroner calls ED death a homicide — Some predict chilling effect
Legal experts question whether any prosecution would be successful
It seems that the legal ED horror stories never end. Just a few months after a Florida family sued over the death of a stroke victim who they say waited too long for a neurosurgeon, a Lake County, IL, coroner's office has ruled an ED death a homicide that was the "result of gross deviations from the standard of care that a reasonable person would have exercised in this situation."
According to the deputy coroner's testimony, a 49-year-old woman waited almost two hours after complaining of nausea, shortness of breath, and chest pains for a doctor to see her in the ED at Vista Medical Center, Waukegan, IL. She was seen by a triage nurse about 15 minutes after she arrived, and the nurse classified her condition as "semi-emergent," according to a media report.1 There has been no action taken by the county district attorney's office, and Vista spokeswoman Cheryl Maynen says the hospital has received no communication from that office. She also tells ED Management that the coroner and deputy coroner are former employees of the hospital, while refusing to attach any significance to that fact. She also indicates that one of them (she would not say which) had worked in the Vista Medical ED.
While the future of the case is unclear, it has understandably sent shock waves through the ED community. "This will have a chilling effect," predicts Frederick C. Blum, MD, FACEP, FAAP, president of the Dallas-based American College of Emergency Physicians (ACEP). "Whether what they say happened actually happened, or who did — or did not — do what, I think the fact that they've criminalized the emergency care of folks is a very, very troubling event," he says.
This could be terrible news, because the "jury" is the public at large — and the public does not understand emergency medicine, says Gregory L. Henry, MD, FACEP, risk management consultant for Emergency Physicians Medical Group in Ann Arbor MI. "Medicine is a statistical probability science, and without the concept of a reasonable 'miss rate,' you can't practice science," he says.
No legal case?
Despite the troubling aspects of this case, it is highly doubtful it could be successfully prosecuted, argues Michael Frank, MD, JD, general counsel for Emergency Medicine Physicians, an emergency physician partnership group based in Canton, OH.
"Some zealous prosecutor might get the bright idea a nurse's negligence should be transformed into something criminal, but intent is very difficult to actually prove, even in the context of things like manslaughter or negligent homicide," he says. Juries usually are not sympathetic to that approach, Frank adds.
"You cannot bring it to the doorstep of the ED manager if the wait is too long," he says. If the nurse involved in triage showed total disregard and recklessness, then that might be a different case, Frank notes, "but from all I read, either the nurse didn't know or appreciate what was going on, so it's a malpractice case at best."
While concerned about the ramifications of the case, Henry agrees that the legal "reasonable man" doctrine cited by the coroner would not stand up in court.
Reality not reflected
The key issues in the case do not reflect the reality that exists in EDs today, Henry says.
There's a dramatic difference between what we'd like to exist in this country and what does exist, he says. "The 'standard of care' is not what happens at the Mayo Clinic at 2 o'clock in the afternoon," he says. (Editor's note: This case occurred after midnight.) "ED waits have gone up, types of diseases have gone up, total volume has gone up, and the number of EDs has been reduced by 20%."
Blum agrees. "I don't know what was going on in that ED, but I will tell you there are frequently times in emergency medicine when you need to be in two places at the same time," he says. "If you're on the night shift and a patient comes in with a cardiac arrest or is near one and someone else comes in with a similar level of acuity, there's just one of you; you have to pick and choose where you will spend your time."
Imagine that you are the only provider in an elevator, and two people have dropped over with cardiac arrest, Blum says. "One of them is not going to get the care you otherwise might be able to give," he points out. "Sometimes, it's a 'numbers' thing."
The idea of facing criminal prosecution can be terrifying for anyone, but as this case shows, it now is a possibility for the ED staff. Is there anything that can be done to minimize that risk?
"The only thing you can do is follow reasonable triage procedures," says Frank. "If you have people of good will who are well trained or well intentioned, even if they fail in doing what we think of as reasonable, that will not transform it into a criminal case."
Keep your patients and their families informed about why the work-up is taking a significant amount of time, advises Henry. State legislation such as the omnibus civil justice reform package signed by Georgia Governor Sonny Perdue in February will help ED managers breathe a bit easier, he says. "It's fantastic," Henry says. "Unless there is gross negligence in the ED, you can't sue."
You have your limits
There are, however, limits to what an ED manager can do. "We really can't limit our variety of cases, or the type and variety of cases we see; we only have limited control over our practice environment," says Blum. "You can be the fastest and most efficient ED around, but if 10 people walk through your door at the same time you are nine behind — and if more than one are critical, someone will not get the care in as timely a fashion."
Will such situations result in more legal cases in the future? Frank doesn't think so. "I doubt there will be a lot based on EDs," says Frank, noting that occasionally a rash of cases arises — such as the recent cases related to medical treatment given during Hurricane Katrina — and then fade away. "They pop up, they get a lot of publicity, and it certainly sends a chill through physicians — but these cases rarely go anywhere," he contends.
From Blum's point of view, one case is one too many. "It's chilling to think about criminalizing our treatment process," he says. "In fact, with the shortage of nurses and, in the future, a probable shortage of doctors, people who have options may pick something other than emergency medicine — and those shortages will become even worse."
It's one thing for an emergency clinician to face the specter of uncontrolled liability, and another to face jail for what may be a system issue more than performance issue, Blum says. "I'm also board-certified in internal medicine and pediatrics," he says. "If [continuing to practice emergency medicine] means I risk going to jail, what's my decision go to be?"
Reference
- ABC News. Illinois woman's ER wait death ruled homicide. Good Morning America. Sept. 17, 2006. Accessed at: abcnews.go.com.
Sources
For more information on the legal ramifications of deaths in the ED, contact:
- Frederick C. Blum, MD, FACEP, FAAP, President, American College of Emergency Physicians, Dallas. E-mail: [email protected].
- Michael Frank, MD, JD, General Counsel, Emergency Medicine Physicians, 4535 Dressler Road, Canton, OH 44718. Phone: (330) 493-4443.
- Gregory L. Henry, MD, FACEP, Risk Management Consultant, Emergency Physicians Medical Group, 1850 Washtenaw Ave., Ann Arbor MI 48104. Phone: (734) 995-3764. Fax: (734) 995-2913. E-mail: [email protected].
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