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Emergency Department Triage The New Hotbed of Litigation?
By Robert A. Bitterman, MD, JD, FACEP, Contributing Editor; President, Bitterman Health Law Consulting Group, Inc., Charlotte, NC; Vice President, Emergency Physicians Insurance Co., Inc., Auburn, CA.
Historically, emergency department (ED) triage was rarely a high-risk issue for hospitals, primarily because short waiting times resulted in all patients being seen quickly by the emergency physicians. Today, the combination of overcrowding, markedly prolonged waiting times, increasing numbers of patients leaving the ED before examination, the nursing shortage, diminishing financial support, and federal Emergency Medical Treatment and Active Labor Act (EMTALA) mandates make triage a very dangerous encounter for the patient and a fertile source of litigation against providers.
Patient deaths in the ED waiting room, before evaluation by the physician, are increasing and now populate the news with frightening frequency. For example, late last year, a 58-year-old man died in a Texas ED waiting area after waiting 19 hours to see a doctor for abdominal pains.1 Also last year, a 49-year-old woman collapsed and died on the waiting room floor of a New York City psychiatric hospital and lay there ignored for more than an hour. She had been waiting nearly 24 hours for treatment before expiring.2
Typical malpractice claims related to triage include:3,4,5
Failure to rapidly or accurately assess the severity of the patient's medical condition resulting in delay in treatment;
Delay in recognition of life-threatening illness or injury;
Failure to monitor or periodically reassess patients waiting for care;
Triaging the patient away from the ED without a medical screening exam (MSE) in violation of EMTALA;
Delaying the patient's access to the federally required medical screening exam on account of their insurance status; and
Failure to obtain an "informed refusal" or explain the risks of refusing care for patients who leave the ED against medical advice or before being seen by the emergency physician (AMA or LWBS).
To counter these claims, the hospital and ED medical director must devote substantial time, effort, and resources to establish an effective triage system. Too many hospitals leave triage to the domain of nursing leadership without critical involvement and supervision of the emergency physicians. Also, too often the department's least experienced nurses are sent out to triage, or the ED "borrows" nurses from an inpatient unit or staffing service to work in triage, when in fact the complexities of the issues related to triage and the ramifications to patient safety from the prolonged waiting time to be seen by a physician demand exactly the oppositethe best and the brightest nurses need to be in triage.
Alternatively, and now more frequently, triage itself may be done by clinicians with greater training, such as PA, NPs, or the emergency physicians themselves.6
Every hospital triage system must address all of the following dozen issues:
Identify who is qualified to conduct triage. Only nurses with substantial ED experience, recognized clinical skill, and excellent interpersonal and communication skills should be allowed to conduct triage for the ED.
One or two years of ED experience are probably inadequate; three to five years may be more reasonable. Whatever the number, the hospital and emergency physicians group need to agree on an acceptable minimum level of ED experience before a nurse is allowed to triage.
The most necessary skill to triage is the ability to identify those patients who need immediate medical intervention to avoid morbidity or mortalityreferred to in the vernacular as the aptitude to tell who's really sick and who isn't. This includes an understanding of the significance of abnormal vital signs and the ability to recognize the multifarious presentations of true life-threatening emergencies, including the not-so-obvious ones.
Nearly equal in importance are the requisite interpersonal and communications skills to deal with patients, families, EMS personnel, and physicians in a fast-paced, hectic environment that is often stressed to the max, and when the patients frequently aren't happy with the wait, the uncertainty, or the complexity of the health care maze. "People skills" is an art, and not everyone has the knack for it.
The triage arena is the hospital's window to the community and an integral piece of a competently run EDso put your absolute best nurses out in triage.
Utilize the designated qualified triage individuals at all times, not just during the busiest hours of the day.
Specifically train those individuals who will work in the triage area of the ED.
Once individual nurses are deemed qualified to work in triage, they should be specially trained on the issues related to triage before actually performing triage functions. Draft a list of the issues the triage folks at your facility need to master and require them to demonstrate competence in those issues before they can begin working in triage.
Advanced training on EMTALA issues. Triage is the primary touch point for persons coming to the ED, and EMTALA governs how the triage staff must interact with those individuals seeking medical attention.7 Consequently, the triage nurses must be well versed on all matters EMTALA.
Training in how to deal with patients who leave LBE or AMA. Triage nurses are often the target of angry or frustrated patients and they must be trained how deal with patients considering or intent on leaving the ED without receiving or completing examination or treatment. The comments or actions of the triage nurses must not be deemed as encouraging patients to leave nor unduly discouraging them from staying.
For example, in the case of South Fulton Medical Center v. Poe, an irate father demanded immediate examination of his infant child, who had become cyanotic at home, by the emergency physician. But the triage nurse refused, assuring the father that "the baby was fine now" and could wait to be seen. Not long after, the father and child left the ED and the child died hours later. A jury awarded the father $1.85 million primarily on the grounds that the triage nurse's assurances motivated the family to leave without examination or treatment.8
The LBE and AMA issues are significant potential liabilities for the ED under both EMTALA and ordinary state malpractice claims; these interactions must be handled carefully.7
Ignore insurance status or financial issues. Insurance information should be removed from triage forms or process; triage decisions should be made without knowledge of the patient's insurance status. Triage all patients, then examine and treat them in the order as indicated by their medical acuity. Never delay the triage assessment or the medical screening examination (MSE) to obtain the patient's insurance information or collect payment of any kind.
In addition to the triage team, the entire clinical staff, including the nurses and emergency physicians, should be blinded to the patient's insurance status throughout the initial screening and stabilizing treatment. This removes insurance status as an issue should the government or a plaintiff's attorney later claim that the staff was motivated in some way or treated the patient disparately on the basis of financial class. It is easier to prove that actions were not predicated on the patient's financial status when one lacks knowledge of that status than to prove that one's actions were medically appropriate despite knowing the patient had no insurance.
Only after the MSE and initiation of stabilizing treatment can economic considerations be considered in determining the patient's future care, such as prescriptions, the admission or transfer decision, or discharge and follow-up arrangements.9
The triage staff should know how to handle patients who ask insurance or financial questions regarding their ED visit, such as whether their insurance will cover the visit or how much it will cost to receive care in the ED. The triage nurses (and registration personnel) should be trained to give "stock answers" to these questions and not discourage or coerce the patient in any way. Instead, they should encourage the patient to stay and defer economic discussions until after triage and a MSE is performed.
Avoid errors with private or "VIP" patients. Members of the hospital's medical staff may choose to meet their private patients in the ED. These patients are examined and treated by their own physicians, not the emergency physician on duty. This practice is entirely appropriate to maintain physicianpatient relationships and allowable under law.
However, the hospital should have prearranged procedures for handling private patients that do not delay the patient's MSE, or the hospital could be liable under EMTALA for failure to provide an "appropriate" MSE. Delay of treatment in such instances also frequently results in hospital liability through state malpractice actions.
All private patients should be triaged according to the hospital's established protocols. If the triage nurse determines that the patient requires immediate care, the emergency physician on duty should provide the necessary treatment until the patient's private physician arrives in the ED to assume the patient's care.
If triage determines that the patient does not require immediate care, the emergency physician should see the patient in the order consistent with the usual practice of the ED, generally in the order of acuity or time of arrival. If the private physician comes to the ED and sees the patient before the emergency physician, the examination by the private physician constitutes the required MSE by the hospital. Furthermore, there has been no undue delay of the MSE for any non-medical reason. However, if the patient's private physician has not arrived by the time the emergency physician would normally examine the patient, the emergency physician should perform a MSE. If no emergency medical condition (EMC) is evident, the patient can wait for his or her physician to arrive. If an EMC exists, the emergency physician should undertake appropriate stabilizing treatment until the patient's physician arrives.
In essence, regardless of private-patient status, "VIP" status, managed care status, or any other special classification, all patients should be triaged and processed in the same manner.
Hospital and medical staff policy must specifically address the issue of handling private patients presenting to the ED.8
Interactions with EMS. Whenever EMS brings a person to the ED, the triage nurse's interaction with the EMS providers is controlled by EMTALA.
First, the nurse may not divert the ambulance off hospital property, regardless of whether the hospital is incapable of handling the patient's complaint (i.e., "We don't do trauma here"). The patient must be triaged and the emergency physician (or other "qualified medical personnel" formally designated to perform MSEs for the hospital) must perform an MSE before any patient can be transferred away from the hospital. Triage itself does not count as the MSE under federal law.
Second, even when the ED is overwhelmed, all EMS patients must be triaged upon presentation to the ED. Some overcrowded hospitals ignore ambulance patients and leave EMS to care for them until the hospital "accepts" the patient, a practice termed "EMS parking." These hospitals erroneously believe that unless they accept responsibility for the patient they have no EMTALA duty to provide care or accommodate the patient. CMS issued a memorandum reminding hospitals that their EMTALA obligation begins the moment the patient "comes to the ED" and a request is made on behalf of the patient for examination or treatment of a medical condition, not when the hospital "accepts" the patient.10,11
In a second memo, CMS later acknowledged that circumstances may exist, such as an influx of multiple trauma victims, where it would be reasonable for the hospital to ask the EMS provider to stay with the individual until such time as the ED staff became available to care for that individual.12 However, it still mandated that:
"[E]ven if a hospital cannot immediately provide an MSE, it must still triage the individual's condition immediately upon arrival to ensure that an emergent intervention is not required and that the EMS provider staff can appropriately monitor the individual's condition." (Emphasis added.)12
Physician and nursing ED leadership should review the two CMS memos regarding interactions with EMS and educate the triage staff accordingly.10,12
Policies and Procedures. The hospital must have clear and comprehensive triage policies and the triage nurses must be intimately familiar with them. These policies should include systems to handle volume surges and/or overload situations. The policies should address all the potential issues that the triage staff are likely to encounter (such as those on this list), particularly the EMTALA rules and regulations.
"Failure to follow your own rules" is a very common source of triage related litigation. Plaintiffs routinely try to prove they were harmed by the hospital by producing evidence that the hospital deviated from its own established triage or medical screening policies ('disparate treatment' claims under EMTALA or state laws.)13
In the case of Clark v. Baton Rouge General Medical Center, a woman presented to the ED with a severe stroke. After triage, her personal physician ordered her transferred to a higher level of care, but without an examination by the emergency physician on duty despite a family member's request for help after the woman vomited while waiting two hours for the transfer. The court held that the hospital deviated from its own policies, which required a medical evaluation to be provided to any person who requested one. It also held that the hospital violated EMTALA by failing to provide an "appropriate" medical screening exam as required by the law.14
Monitor and periodically reassess patients waiting to be seen. The triage nurses must monitor the condition of waiting patients at regular intervals, regardless of the patient's complaint. Policies should govern this aspect of triage, but be flexible and not be written in a way that hamstrings the staff into actions or timeframes they can't possibly meet at all times, particularly during the busiest shifts. The triage nurses essentially control flow in the ED and access to examination and treatment. They must remain vigilant in observing changes in the patients' condition that warrant changes in prioritization.
Communicate, communicate, communicate. Triage nurses must be expert communicators and the hospital must train them on what to say and what not to say to patients presenting to the ED. For example,
What do they tell patients who ask how long the wait is?
How do they handle a "VIP" who insists on being seen immediately?
How do they deal with irate families?
When can the family go back to the treatment area with the patient? How many family members?
Nurses should not make judgments or assure patients that their conditions are not serious. Patients may decide to leave because of the long wait after being assured by the nurse (the hospital) that their condition wasn't serious. No matter how trivial the chief complaint may appear to be, there is no way to be certain that the patient doesn't have an emergency condition until after the MSE has been completed by the physician.
Document! The elements of the triage record should be determined by the hospital with emergency physician input. The triage nurses should complete all the required essential elements on all patients presenting to the ED. Specific attention should be paid to the triage categorization that dictates the order in which patients are seen by the emergency physicians.
Compliance with the required documentation should be periodically monitored, and the judgment of the triage nurses regarding the acuity categorizations reviewed regularly. Nothing is more important to decreasing liability related to the triage functions.
In summary, the nurses with the most clinical experience, the finest clinical skills, and the best interpersonal/ communication skills are the only nurses who should be allowed to triage for the ED. Furthermore, triage staff must be specially trained in all facets of triage, including the significance of abnormal vital signs and the recognition of true life-threatening presentations, patient monitoring, interpersonal and communications techniques with patients, families, and physicians, documentation issues, detailed knowledge of hospital policies, and particularly the EMTALA rules and regulations.
In today's overcrowded ED, triage is the linchpin to a functional patient care system and avoiding liability related to delay of care.
1. Cox L. ER Death Points to Growing Wait-Time Problem. ABC News Medical Unit, September 25, 2008. http://abcnews.go.com/Health/story?id=5884487.
2. CNN News July 1, 2008: Tape shows woman dying on ER waiting room floor.www.cnn.com/2008/US/07/01/waiting.room.death/index.html.]
3. Wuerz R, et al. Inconsistency of emergency department triage. Ann Emerg Med 1998;32:431-435.
4. Carroll v Wake County Hospital Systems, Inc. Medical Malpractice Verdicts, Settlements & Experts 1994;10(17) June. (Negligent triage/delay in examination by the emergency physicians of a patient with chest pain resulting in death in the ED; case settled for $584,000.)
5. Thompson DA, et al. Effects of actual waiting time, perceived waiting time, information delivery, and expressive quality of patient satisfaction in the emergency department, Ann Emerg Med 1996;28:657-665.
6. Brillman JC, et al. Does a Physician visual assessment change triage? Am J Emerg Med 1997;15:29-33.
7. Bitterman RA. Providing Emergency Care under Federal Law: EMTALA, 2001; and Supplement 2004. American College of Emergency Physicians.
8. South Fulton Medical Center v. Poe, 480 S.E.2d 40 (Ga. Ct. App. 1996
9. 68 Fed. Reg. 53,221-53264 (2003); 42 CFR 489.24 et seq.
10. Centers for Medicaid and State Operations/Survey and Certification Group, Ref: S&C-06-21, July 13, 2006: EMTALA"Parking" of Emergency Medical Service Patients in Hospitals.
11. The practice or "parking" of EMS patients may also violate Medicare regulations which require hospitals to "meet the emergency needs of patients in accordance with acceptable standards of practice." See 42 CFR 482.55.
12. Centers for Medicaid and State Operations/Survey and Certification Group, S&C-07-20, April 27, 2007: EMTALA Issues Related to Emergency Transport.
13. Bitterman RA. Overcrowded emergency department leads to lawsuit over EMTALA. ED Legal Letter 2008;19:133-136.
14. Clark v. Baton Rouge General Medical Center, 657 So.2d 741 (La.Ct.App. 1995)