ED Legal Letter – July 1, 2018

July 1, 2018

• ‘Patient Dumping’ Still Happens 30 Years After EMTALA; EDs Face Significant Exposure

  Have you ever heard the question, “What would you do if an ED patient behaved in an unruly manner?” If an investigator from CMS asked one of your ED’s security guards this question, would the response reveal non-compliance with federal law?

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• Can Rarely Used ‘Empty Chair’ Strategy Help ED Defense?

  The “empty chair” strategy comes into play when there is a potential unnamed defendant with possible exposure. Using the empty chair defense, a named defendant would argue the liability of the unnamed defendant.

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• Does Reassessment Before Discharge Reveal Abnormal Vitals? Documentation Is Key

  Dozens of times each shift, EPs determine the appropriate disposition for patients. A well-documented, appropriate reassessment can reduce legal risks and should include proof that the EP spoke to and examined the patient, as well as repetition of pertinent portions of the physical exam.

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• ‘Divide and Conquer’ Is Plaintiff’s Strategy With ED Co-defendants

  When both ED nurses and EPs are named in a malpractice suit, a unified defense is the goal.

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• Significant Legal Exposure for Hospital if Patient Assaulted in ED

  Seldom does a person go from a state of calm to physical violence without warning. Are staffers trained to recognize when an aggressive patient’s behaviors are escalating?

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