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Want to admit patient, but can't? Lawsuit may result
Ultimate responsibility is yours
This article originally appeared in the March 2011 issue of ED Legal Letter. It was written by Stacey Kusterbeck, edited by Larry Mellick, MD, MS, FAAP, FACEP, and reviewed by Kay Ball, RN, PhD, CNOR, FAAN. Stacey Kusterbeck, Larry Mellick, and Kay Ball report no financial relationships relevant to this field of study.
It may be in the best interest of your ED patient with chest pain, seizures, or transient ischemic attack (TIA) to be admitted, but this may not occur due to factors beyond your control.
Edward Monico, MD, JD, assistant professor in the section of emergency medicine at Yale University School of Medicine in New Haven, CT, says that the main problems EPs encounter when admitting a patient to the hospital involve lack of institutional resources such as specialty consultation, and lack of a willing inpatient service provider to accept responsibility for the care of the patient.
"Despite these obstacles, the ultimate responsibility for the disposition of an ED patient rests with the emergency physician," says Monico. A patient requiring admission for inpatient monitoring and/or treatment should receive inpatient monitoring and/or treatment, he explains, and the physician best situated to make that determination is the EP.
"Emergency physicians who acquiesce to a consultant's request for office follow-up in lieu of necessary inpatient treatment, or succumb to the rationale of a hospitalist or private physician unwilling to provide required inpatient care, could be liable for harm realized if injury arose from an inappropriate discharge from the ED," warns Monico.
To reduce legal risks, Monico gives these recommendations for EPs facing obstacles during the admission process:
1. Be prepared for this scenario.
"Institutional contingency plans should exist for when opinions differ as to whether a patient needs admission," says Monico. "Admitting patients to a default physician until delineation of inpatient responsibility can be assigned is one option."
Monico says that another option would be to call the administrator on-call to resolve the issue in real time.
2. Transfer the patient when appropriate.
Transferring a patient in need of specialty consultation to a "willing and able accepting hospital" capable of providing that consultation far outweighs discharging a patient from the ED when ED consultation is required, says Monico. "The need for the consultation and the reason for the transfer have to be documented and made known to the patient," he adds.
3. Communicate with the patient.
"Patients have a right to know of problems that impact their health care, such as what underlies the need for transfer to another hospital," says Monico.
4. Document your medical decision-making.
"Although actions speak louder than words, documentation of a physician's thought process remains a fundamental risk management strategy in cases when other physicians pose obstacles to the emergency physician trying to abide by the standard of care," says Monico.
Speak up for patients
EPs should never allow administrators to dictate admission criteria, underscores Tom Scaletta, MD, FAAEM, chair of the ED at Edward Hospital in Naperville, IL. "This is a form of a lay entity practicing medicine," he says. "While they may cite utilization criteria, every patient is different in terms of their presentation, reliability, and willingness to accept risk."
EPs should avoid practice settings where they feel their job may be in jeopardy as a result of speaking up on behalf of their patients, adds Scaletta. "The ED medical director needs to advocate for patient care and staff rights," he says.
Scaletta acknowledges that an EP who is a clear outlier regarding utilization may need to be "reeled in" by the director. However, he says, "Working under the direction of an unreasonable, reactive medical director that puts corporate interests above patient care precipitates lawsuits and burnout."
Scaletta says that patients can be observed in the ED when they are not ready for discharge, while admission to another area of the hospital is not possible. "This is not ideal, since it contributes to ED overcrowding and spreads the ED staff thinner than it should be," he notes.
Patients should be involved in "gray area" decisions regarding admission versus discharge, says Scaletta. Using the example of a TIA patient, Scaletta notes that in the lower-risk cases with an ABCD score less than five, stroke occurring in the next 24 hours is unlikely.1
An informed patient may prefer to go home on aspirin, complete further testing as an outpatient, and return at the first sign of any worsening, says Scaletta.
"If family members are willing to observe such patients at home, there is usually no disadvantage as long as they rapidly return to the hospital should any neurological signs return," says Scaletta.
No one to admit them to
John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA, says that, "TIAs remain problematic for EPs. It is a very challenging issue. The problem is that they can't get anyone to admit those patients to the hospital."
Although EPs and neurologists in large stroke centers will admit all TIA patients to the hospital, this often is not the case in community hospitals.
"ED physicians will generally agree with the data that says patients are at increased risk for having a stroke in the next couple of days," says Burton. "But the neurologist won't admit them, or even be available to see the patient. The hospitalists and intensivists will say there is nothing they can do for them."
The EP is then put into the difficult position of being told by the literature to admit TIA patients, when there is no one to admit them to.
"What happens is an event where the TIA patient is discharged from the ED. Within a week, the patient returns with a substantial debilitating stroke," says Burton. The plaintiff then argues that failure to admit and properly treat the TIA visit resulted in the subsequent stroke by neglect.
"What's generally lost in the details is that there is often no clear management strategy or therapy for the TIA patient during hospitalization that could have prevented the stroke," says Burton. "However, it just looks bad. Therefore, the compulsion to settle a case, or the threat of a case, is rather high."
If EPs at your hospital are encountering this problem, you need to have a plan in advance for how you are going to handle it, advises Burton. Whether or not the TIA patients are going to be transferred to a stroke center, he explains, it's important to have a dialogue about the care of these patients.
"Medicolegally, that is a good strategy. Your plan may be, 'There is nothing we can do, and we just have to send those patients home.' On the other hand, once you look at it, sometimes there is a hospital that will take the patients," says Burton.
In this scenario, Burton recommends documenting in the medical record that you have spoken to the doctors on call for admission, and they are not agreeable to admitting the patient. Also document that you have arranged appropriate follow-up for the patient in the next few days, adds Burton, and told them when to return immediately to the ED.
"This isn't meant to be inflammatory. You shouldn't throw everybody else under the bus because they won't admit the patient," says Burton. "But be clear in your rationale, and realize there is some risk there, if there is a bad outcome."