When Inpatient Boards in ED, Who is Responsible?

Confusion Leads to Lawsuits

When an admitted patient is boarded in the ED for extended periods, there may be confusion over who is responsible for the patient—is it the ED physician, the hospitalist, the surgical specialist, or the medical specialist?

Unfortunately, it's likely that the ED physician would share in the liability for bad outcomes that occur due to negligence, delay in care, or outright medical error. "For the sole physician working in a typical community ED with limited backup, this is not good news," says Andrew Garlisi, MD, MPH, MBA, VAQSF, medical director for Geauga County EMS and co-director of University Hospitals Geauga Medical Center's Chest Pain Center in Chardon, OH.

The admitted, boarded patient may not have been examined personally by the admitting physician, which is common on nights and weekends. In this scenario, Garlisi says it would be difficult for the ED physician to evade liability.

This may be true even if the boarded patient has been examined by the primary care physician or hospitalist, and experiences a deterioration in clinical status requiring immediate attention. "Would not the emergency physician—who already had been involved in the patient's management and is readily available—be expected to intercede on the patient's behalf?" asks Garlisi.

Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods and a former practicing emergency physician, says that the ED doctor is the physician in charge until the patient is admitted.

"In a perfect world, responsibility for the patient would be transferred at the time the decision is made to admit," McMenamin says. "The problem is that it's not at all unusual, and in some cases it is becoming the rule rather than the exception, for the patient to spend some length of time in the ED. That is where the difficulties arise."

In the event a patient sues alleging a bad outcome due to boarding, Debra J. Gradick, MD, FACEP, medical director of the ED at Avista Adventist Hospital in Louisville, CO, and vice president of operations at Serio Physician Management in Littleton, CO, says that she believes the ED physician faces greater liability exposure than other physicians do.

"We are actually the physician who treated the patient last. The finger is pointed at us. The admitting physician, in my experience, can often get off the hook." says Gradick.

Responsibility Is Shared

The primary problem, says Sandra Schneider, MD, professor of emergency medicine at University of Rochester (NY) Medical Center, is that the admitted patient is under the care of the admitting physician. However, because the patient is still in the ED with a doctor working in close proximity, there may be shared responsibility.

The best protection for the ED physician is medical staff bylaws, which clearly state the physician responsibility for admitted patients. "That responsibility should be, as with any other inpatient, the admitting physician's," says Schneider. "However, if the medical staff bylaws cannot be changed or are unclear, the ED physician is in a difficult position."

William Sullivan, DO, JD, FACEP, director of emergency services at St. Margaret's Hospital in Spring Valley, IL, and a practicing attorney says to take these steps to avoid confusion over who is responsible for a patient's care:

• Tell the admitting physician you are going to have the floor nurses call for further orders.
• Document that the admitting physician accepted responsibility for the patient at the time of admission.
• When patients require intensive medical management, request that an admitting physician come to evaluate the patient.
• Write orders stating that the admitting physician must be called to review current orders, and to provide any necessary additional orders.
• If a patient requires a non-emergent order yet is being boarded in the ED, ask the nurses to contact the admitting physician.

"A consistent requirement that the admitting physician provide all non-emergent orders will prevent confusion as to who is responsible for the patient's care," says Sullivan.

'It's Still Your Patient'

Frank Peacock, MD, vice chief of emergency medicine at The Cleveland (OH) Clinic Foundation, says that "ethically, morally, and usually legally, it's still your patient. Someone who has never seen the patient but talked to you on the phone cannot possibly be responsible."

Peacock says that until the admitting physician comes to see the patient, or the patient leaves the ED and goes upstairs and now is admitted, the ED physician remains legally responsible.

"I am responsible for everything in my department, even if the consultant is there," says Peacock. "If a consultant comes in and does something to the patient, it's still your patient. You share the liability on that."

It can be argued that the admitted, boarded patient has "changed hands" in terms of physician responsibility. It can also be argued that all patients boarded in the ED fall under the responsibility of the ED physician and emergency staff, until such time when the patient is physically removed from the ED environment, says Garlisi.

ED physicians may believe they are transferring responsibility to the admitting physician by taking orders over the phone. However, this is not necessarily the case, says Peacock.

"How could you think you're going to win a lawsuit if you claim that it's not your responsibility, because you took an order over the phone from a doctor who didn't see the patient—a patient that you just talked to five minutes ago?" asks Peacock. "The jury will not buy that the doctor at home was responsible, not the one standing next to the patient. These guys may think they are shifting their liability, but that makes no sense."

McMenamin notes there have been cases where courts have analyzed the relative obligations of physicians conferring with each other over the phone. "Some cases have indeed held liable physicians who did nothing more than answer the phone. Others have not," he says.

This varies depending on the state and the facts of the case, including the practices prevailing at the hospital in question and the extent of information conveyed to the consultant over the phone.

"Some cases have held that once the emergency physician gets the consultant involved, and the consultant starts to give orders, the ER doc is out of the picture," notes McMenamin. "It is a viable theory in certain circumstances."

Sources

For more information, contact:

* Andrew Garlisi, MD, MPH, MBA, VAQSF, University Hospitals Geauga Medical Center, Chardon, OH. Phone: (330) 656-9304. Fax: (330) 656-5901. E-mail: garlisi@adelphia.net

• Debra J. Gradick, MD, FACEP, Medical Director, Emergency Department, Avista Adventist Hospital, Louisville, CO. Phone: (303) 673-1003. E-mail: DebraGradick@Centura.org

• W. Frank Peacock, MD, The Cleveland Clinic Foundation, Department of Emergency Medicine, Cleveland, OH. Phone: (216) 445-4546. E-mail: peacocw@ccf.org.

• Joseph P. McMenamin, MD, JD, FCLM, Partner, McGuireWoods, Richmond, VA. Phone: (804) 775-1015. E-mail: jmcmenamin@mcguirewoods.com

• Robert B. Takla, MD, FACEP, Chief, Emergency Center, St. John Hospital and Medical Center, Detroit, MI. Phone: (313) 343-7071. E-mail: rtakla@comcast.net.

• Sandra Schneider, MD, Professor, Emergency Medicine, University of Rochester (NY) Medical Center. Phone: (585) 463-2970. E-mail: Sandra_Schneider@URMC.Rochester.edu

• William Sullivan, DO, JD, Phone: (708) 323-1015. E-mail: wps013@gmail.com