Dangerously Understaffed EDs Can Legally Expose Hospital
Widespread staffing shortages caused by ongoing COVID-19 outbreaks, staff resignations without replacements, and staff callouts are wreaking havoc at many EDs. Short-staffing is reaching dangerous levels at some EDs, enough to cause the areas to shut down altogether.1-3 The problem also could legally expose the hospital.
“Even before the pandemic, ED staffing levels relative to the patient census were routinely an issue in emergency medicine cases,” reports Joshua E. Gajer, JD, a partner at Philadelphia-based White and Williams.
Gajer has seen ED staffing levels become a central focus in two types of malpractice cases. Most commonly, it is a case alleging delayed diagnosis. “Plaintiffs’ lawyers criticize the amount of time it took for the patient to be seen by a doctor,” Gajer says.
Operating minus just one triage nurse or emergency physician (EP) can extend wait times, and electronic medical records make it easy to show the precise time frame between arrival and evaluation. Understaffing allegations also arise in ED observation cases. In those lawsuits, attorneys criticize the lack of available staff to closely monitor the patient. “For years, plaintiffs’ attorneys have argued that a hospital is liable, as an institution, for not employing sufficient numbers of qualified staff to triage and/or monitor patients,” Gajer notes.
In the cases Gajer has seen, understaffing allegations are especially effective if bad outcomes happened during overnight shifts. Those EDs were not unexpectedly short-staffed due to an emergent issue. “Rather, plaintiffs argue that the hospital’s normal staffing plan was insufficient from the outset,” Gajer explains.
To prevail, plaintiff attorneys must establish an applicable “standard of care” with respect to the minimum number of providers needed to safely render care in any given ED, along with a breach of that standard by the hospital. Plaintiffs also must establish a causal link between the alleged staffing breach and the patient’s outcome. For example, the attorney would have to show that because of understaffing, it took an EP too long to diagnose a time-sensitive condition.
The necessary proof of causation differs state to state, adding to the complexity of these cases. In some states, plaintiffs only need to prove the lack of personnel was a substantial factor in causing the adverse outcome. “In other states with a higher causation standard, the plaintiff would have to prove that, but for the staffing shortage, the bad outcome would not have occurred,” Gajer reports.
Plaintiff attorneys will study the patient census in the ED and the staff members assigned to the area during the shift in question. Importantly, these records can be used to determine the hospital’s average patient-to-provider ratio. “There is no set ratio that is considered adequate,” Gajer says.
Rather, plaintiffs would need expert testimony to support the claim that a particular level of staffing fell below the minimum standard of care. “A hospital may have an excuse or justification for the staffing ratio. But the question of whether the hospital acted reasonably, and consistent with the standard of care, will likely be left to the jury to decide at trial,” Gajer says.
Hospitals may note other area hospitals also experienced staffing shortages. “But this is unlikely to provide a complete legal defense. Ultimately, it will be an issue for determination by the jury,” Gajer says.
EP defendants accused of negligent care are going to resent bearing blame for understaffing. “ED providers need to be careful in their depositions not to pass responsibility to the hospital for understaffing or otherwise providing inadequate resources,” Gajer cautions.
Such testimony would bolster a direct claim against the hospital. It also is highly unlikely to benefit the EP defendant. “Unless the provider actually believes that he or she provided care that was so delayed that it fell below the minimum standard, the provider would be better served simply testifying to the facts of the treatment, including the related timing,” Gajer explains.
Gajer says ED providers are better served by testifying honestly about staffing levels and the ED’s capacity while avoiding opinions on how these factors affected their ability to provide adequate care.
“If the ED provider is unable or unwilling to do so, this could create a conflict of interest in the representation of the provider and the hospital, requiring the retention of separate counsel for the provider and the hospital,” Gajer notes.
In ED malpractice litigation, understaffing allegations are one way to bring the “deep pocket” hospital into the claim. “If a plaintiff can ‘add on’ to their potential theories of negligence against the hospital defendant, they will do so. It is inevitable that the hospital will always be a target defendant if things go awry,” says Heather A. Tereshko, JD, principal at Philadelphia-based Post & Schell.
As understaffing has been an ongoing crisis for several years, it is expected to be a frequent allegation in future litigation. “It is simply another theory of negligence that plaintiffs may allege against a hospital defendant,” Tereshko says. “We have not seen these cases yet, but expect to see them in the next year or so.”
Assuming plaintiffs can prove understaffing resulted in bad care, causation remains a daunting hurdle. “The question remains whether the understaffing was the cause of the patient’s injury,” Tereshko explains.
If the patient waited hours for a chest X-ray because the ED was understaffed, the plaintiff’s experts can argue the patient’s impending myocardial infarction or pneumonia complications could have been prevented. Defense experts can admit the ED was understaffed, but counter that the delayed chest X-ray did not cause the bad outcome. In that kind of case, a hospital cannot escape liability by taking the position that other EDs were understaffed, too.
“Ultimately, the hospital is responsible for providing emergency medicine treatment that complies with community standards of care,” Tereshko says.
REFERENCES
- UH Lake Health. Emergency department at UH Madison Health Center temporarily closed. Dec. 31, 2021.
- George J. Crozer Health temporarily suspends some services because of COVID-19 surge, staffing shortage. Philadelphia Business Journal. Jan. 10, 2022.
- Otterman S, Goldstein J. More patients, fewer workers: Omicron pushes New York hospitals to brink. The New York Times. Jan. 7, 2022.
If litigation occurs, providers are better served by testifying honestly about staffing levels and the ED’s capacity while avoiding opinions on how these factors affected their ability to provide adequate care.
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