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Identify patients "as soon as humanly possible"
An Ebola patient presents to an emergency department (ED) and is either misdiagnosed and discharged or is not appropriately isolated and infects others. What is the liability risk for the emergency physician (EP)?
Ebola screening should occur as early in the patient encounter as possible to limit exposures in the waiting room, advises Andrew H. Koslow, MD, JD, FACEP, an assistant clinical professor of emergency medicine at Tufts University School of Medicine in Boston. Koslow is also an EP at Steward Good Samaritan Medical Center.
"I know of at least one ED with a greeter at the entrance asking about relevant travel history so they are really picking up those patients in need of isolation as soon as humanly possible," he says. If no screening is done until the suspected Ebola patient reaches a treatment room through everyday processes, adds Koslow, hospitals and EPs are "putting themselves at some additional legal risk."
If ED staff fail to follow policies for Ebola screening and isolation of suspected cases, the hospital is also potentially liable. "There is at least as much liability for an institution as there is for an individual provider in that scenario, and probably more," says Koslow.
It is unclear what legal standard of care an ED would be held to if a patient was inadvertently exposed to Ebola. "We just don’t have enough facts right now to speak about liability specific to Ebola," says Julian Rivera, JD, a partner at Husch Blackwell in Austin, TX.
"What we do know, that is well-drawn in the law, is what to do about public health emergencies," says Rivera. "That is something that has been part of risk management for decades."
EPs need to be engaged with the hospital medical staff and the hospital’s infection control team, he advises. "Ebola has created such a level of fear in the United States, that emergency physicians have to be careful not to allow that fear to drive rational, good medical decision making," says Rivera.
Instead, EDs need to make sure they have good systems in place. "It’s not fear-based medicine or defensive medicine — it’s team-based, thoughtful medicine," says Rivera. "The team is going to be held to a standard of reasonableness."
If a patient gets any type of infection in the ED, it doesn’t necessarily mean that someone committed malpractice. "Hospital-based infections exist across the country. That doesn’t, by itself, create liability," says Rivera." He recommends these practices:
Have "close-the-loop" conversations with the provider team members.
Be sure all of the important information that has been gathered by the team has been shared. "Regardless of potential liability, work to have the best communication possible within the team — including the triage nurse — under the circumstances, which may be very chaotic and overwhelming," says Rivera.
Re-evaluate ED policies and procedures for infectious diseases.
"The best thing emergency physicians can do right now is confirm that their department systems have integrity, and that they are being utilized appropriately," Rivera says.
Document that public health officials were notified of suspected Ebola cases.
"Also document that the ED’s system has been engaged to deal with that patient," says Rivera.
There are surprisingly few successful suits involving hospital-acquired infections, either in the ED or other settings, according to Koslow. "Many of the cases are dismissed. These are very difficult suits, due to causation issues," he says.1,2
The plaintiff attorney must prove that the EP did something wrong that resulted in harm to the patient. "The more concrete proof you have, and the better expert you have, the more likely you are to be able to show causation," explains Koslow.
In one case, a woman was able to prove she contracted herpes from a hospital roommate due to poor infection control procedures.3 In another case, the plaintiff was able to show that technicians failed to follow infection control procedures, resulting in a patient being infected with meningitis.4
These cases "certainly could apply to the ED, but there is very little coming from the emergency department [setting]," says Koslow. "The cases just don’t seem to be out there."
Often, this is because the experts can’t prove causation. In a 2001 case, a series of experts discussed probabilities that the patient’s infection was due to negligence.5 "But it was overly vague, and the case was dismissed," says Koslow.
It’s not hard to imagine a patient getting the flu or another contagious illness from another patient in an ED waiting room, but it’s unlikely a plaintiff attorney would be able to prove it. This is not the case with Ebola.
"There is a defined set of risks for exposure, so the ED wouldn’t be able to argue that the patient got it somewhere else," explains Koslow. For EPs to protect themselves legally, "it’s no mystery what they have to do," he says — they have to screen patients adequately. Once a suspected patient is identified, they have to use the proper isolation techniques.
"Failure to do those things would certainly be grounds for a suit," says Koslow. The plaintiff attorney could argue that there was negligence if an Ebola patient was not properly isolated, "but you’d have a battle of experts going on."
Another scenario fraught with legal risks is a patient who meets the screening criteria, is placed in an isolation room with personal protective equipment, and then wants to leave the ED. "There can be a protective order in place to have someone who’s been exposed quarantined," says Koslow. "But that’s not an easy thing to obtain on the spot quickly when you are working in an ED."
There should be a plan to call the local or state health department or other similar authority in this circumstance, says Koslow, "and they should be involved anyway, if there is a patient suspicious for Ebola in the ED."
A patient who was exposed to Ebola in the ED could successfully sue if he or she could prove the EP knew, or should have known, of the risk and failed to take reasonable care under the circumstances to protect patients. "But this would be very case-specific," says Gary Mims, JD, a partner at Sickels, Frei and Mims in Fairfax, VA.
If an ED patient, for example, just arrived from Liberia with a high fever, the ED must take steps to protect other patients. "There is nothing special about Ebola in the legal context," says Mims. "The fact that the virus is lethal simply raises the standard of care the ED must take to avoid transmittal to other patients."
If an Ebola patient is misdiagnosed with flu in the ED and returns home and infects others, says Mims, "to analyze liability, we have to ask whether a reasonably prudent ED physician would have had Ebola on his differential."
The next question would be whether a reasonably prudent EP would discharge the patient without ruling out Ebola. "I would say that given the lethality of the virus, the answer would be no," says Mims.
The question then becomes what EDs should do with a patient who might have Ebola, and it cannot be ruled out. "If Ebola is on the differential, the ED doctor needs to call in a consultant with expertise in Ebola and quarantine that patient to the best of his ability until the experts can take over," says Mims.
The duty to diagnose strep throat and the duty to diagnose Ebola are not the same, according to Mims. "The medical approach may be the same. But the standard of care involved in the diagnosis of Ebola is much greater because the potential harm associated with misdiagnosis is much greater," he says.
The patient with suspected strep can be sent home with medication and instructions without a definitive diagnosis, says Mims. "The same is not true for the patient with Ebola on the differential, because the consequences of a misdiagnosis are much greater," he says.
(Editor’s Note: For the latest updates on Ebola and other infectious disease threats go to hicprevent.blogs.ahcmedia.com.
Andrew Koslow, MD, JD, FACEP, Department of Emergency Medicine, Steward Good Samaritan Medical Center, Brockton, MA. Phone: (508) 427-3034. E-mail: Andrew.Koslow@steward.org.
Gary Mims, JD, Sickels, Frei and Mims, Fairfax, VA. Phone: (703) 925-0500. E-mail: firstname.lastname@example.org.
Julian Rivera, JD, Partner, Husch Blackwell, Austin, TX. Phone: (512) 479-9753. E-mail: Julian.Rivera@huschblackwell.com.