Numerous recent, highly publicized cases and malpractice suits involved patients who died in ED waiting rooms.
“Don’t buy into the myth that the patient can’t die in the lobby, that the waiting room is a safe place regardless of the presenting complaint,” warns Nathaniel Schlicher, MD, JD, FACEP, associate director of the Patient Safety Organization for Knoxville, TN-based TeamHealth. Schlicher is also attorney of counsel in the Seattle office of Johnson, Graffe, Keay, Moniz & Wick.
Patients sometimes don’t appear as ill as they actually are.
“There seems to be a bias that patients can’t die in the lobby,” Schlicher says. “Tragedy has told us all too often that that is not the case. We only need to open a newspaper or news feed to see that.”
The risk of open court litigation in highly publicized cases can increase the pressure on defendant EPs to settle — and at a potentially higher cost than otherwise might occur.
“Any high-publicity case increases the risk of high-cost litigation — and the risk of the multiplier effect of public condemnation and punitive damages in jurisdictions that allow it,” Schlicher adds.
Crowding Is Root Cause
Schlicher says the root cause of ED waiting room deaths is crowding stemming from unavailability of inpatient beds.
“There are inpatients taking up ED beds in every institution,” he says.
Inpatients boarded in EDs aren’t necessarily receiving the ideal care they deserve, he notes, and patients in the waiting room have even less supervision than patients in hallways.
“Sometimes we see the ‘easy’ things in hallway beds, while the sick and septic patient sits in the lobby,” Schlicher says.
If patients miss out on life-saving treatments due to systems problems, the plaintiff might argue “what we might call a lost opportunity doctrine,” Schlicher says. “There is risk for the hospital, as well as ED providers.”
If tests ordered for a patient in the waiting room come back abnormal, the EP might not even know because he or she hasn’t seen the patient yet.
“‘Standing order’ protocols are running into challenges with CMS,” Schlicher notes. While the EP’s risk of litigation decreases if the EP’s name isn’t on the chart, “the right thing is to start care — whether it means protocols allowing nurses to initiate orders, or the EP going out into the lobby,” Schlicher advises.
In some cases, EPs order tests for patients before the patient is officially “their” patient.
“Often, EPs are dragged into a case because the nurses need orders and the EPs are intervening with patients without even seeing them,” Schlicher says. “When you put orders in under your name, you are responsible.”
Another issue is patients who leave without seeing anyone, before test results are back. When someone doesn’t follow up on critical abnormalities for these patients, Schlicher says, “that puts everyone at risk.”
EDs need a quality oversight program that ensures follow-up on all test results for patients in the waiting area and for patients who leave without being seen.
EPs need to be aware of patients in the waiting room, going so far as to possibly walk in the lobby, Schlicher stresses.
“Even if you are not seeing them physically, EPs need to look at the patient complaint and know their story,” he says. “EPs oftentimes can be a second set of eyes for a sick patient.”
Schlicher notes that from a fiscal standpoint, the hospital loses revenue when the patient leaves without evaluation or treatment.
“Many patients will see your ED in chaos and not even bother to register,” he says, noting EPs can use this to justify additional resources to administrators.
“There are real risks to the patient — and liability for the EP and the hospital — when we don’t prioritize the ED and instead put dollars into the operating room,” Schlicher says.
As with any other type of negotiation, he says, EPs need to understand the other side’s perspective.
“Frame your story in a language they can understand,” Schlicher says. One way of doing this is to share actual cases in which patients were put at risk in the ED waiting room, such as a patient who sat in the lobby for hours while having a heart attack.
“The emotional impact of powerful stories will often drive administrators to make difficult choices,” says Schlicher. “No one should have a loved one cared for in a lobby because there is not even a hallway chair.”
Lawsuits Stem from Delayed Care
Regardless of whether a bad outcome occurs in a waiting room or after the patient is brought back to a treatment room, EPs face liability risks whenever care is delayed and the patient has a time-sensitive diagnosis, “no matter how well you chart it or explain it,” says Charles A. Eckerline Jr. MD, FACEP, an EP at University of Kentucky Hospital. Eckerline is also an associate professor at the University of Kentucky’s Department of Emergency Medicine.
Eckerline has served as an expert witness in many claims against EPs in which delayed care was a central issue.
“The majority of EDs are experiencing increased crowding. Medicaid patients are flooding EDs, and long waits are not unusual for patients believed to be non-urgent,” he says.
Claims involving patients waiting in the ED lobby often stem from incorrect triage, sometimes due to atypical presentation of a time-dependent problem.
In a current malpractice case, the patient presented with what appeared to be minor shortness of breath and died in the ED shortly after staff brought the patient to a room.
“The allegations are that the patient should have been brought back more quickly and started on appropriate anticoagulants, and that the triage nurse should have identified that the patient was at higher risk,” Eckerline says.
Good documentation of the patient’s initial presentation can justify the decision not to bring the patient back sooner.
“If there are long waits and patients don’t seem to be in any distress, at the time it may have been a reasonable decision,” Eckerline explains.
In some cases, the patient died right before, or shortly after, arriving in the treatment room. The EP had not yet seen the patient, but was still named in the lawsuit. In one such case, Eckerline says, “the patient seemed stable, until suddenly he crashed.” The EP hadn’t seen the patient, but was still named as one of the defendants.
“The plaintiff attorney argued that the EP should have had some role in determining who comes back and is legally responsible for the patient’s outcome,” Eckerline says.
Other malpractice claims with a similar scenario involve patients who present with what appears to be a relatively minor febrile illness who, as it turns out, suffer from a life-threatening infection. The plaintiff typically alleges that delayed antibiotics and intravenous fluids exacerbated the patient’s outcome.
In such cases, Eckerline says the EP’s best defense is good documentation of regular assessments and decision making.
“But juries are not sympathetic to long waits, no matter the reason,” he says. “It’s very hard to explain why a patient who had a bad outcome waited for six to eight hours.”
This opens the door for the plaintiff’s attorney to ask questions at the EP’s deposition such as, “Did you call in other resources?” “Did you reassess the patient?” or “Did you recognize that crowding was a problem?”
“To reach the deeper pockets, the plaintiff attorney will try to make the case that the hospital should have been aware of the crowding before it became such an issue,” Eckerline says. Patient flow plans that seemed appropriate a year ago might not reflect the ED’s current situation.
“It’s a continually moving target,” Eckerline says.
SOURCES
-
Nathaniel Schlicher, MD, JD, FACEP, Associate Director, Patient Safety Organization, TeamHealth, Knoxville, TN. Email: [email protected].
-
Charles A. Eckerline Jr., MD, FACEP, Associate Professor and Vice Chairman, Department of Emergency Medicine, University of Kentucky Medical Center, Lexington. Email: [email protected].
