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Reduce Legal Risks of "No-Show" ED Consultants
Decision needs to be made
Did an ear, nose and throat consultant refuse to come in for a critical-airway patient, a neurosurgeon for an intracranial bleed, or a hand surgeon for a patient with a tendon rupture? "Any of these instances could lead to poor or unsafe patient care and strained future relationships," says Chad Kessler, MD, FACEP, FAAEM, section chief of emergency medicine at Jesse Brown VA Hospital in Chicago.
Your hospital may have an appropriate on-call specialist who cannot be reached, fails to appear in a reasonable amount of time, or outright refuses to come to the ED. If this occurs, says William Sullivan, DO, JD, FACEP, director of emergency medicine at St. Margaret's Hospital in Spring Valley, IL, the emergency physician (EP) must have contingency plans. If there is more than one physician in the necessary specialty on staff, the EP can attempt to contact other specialists who are not on call, notes Sullivan.
"While those physicians are not obligated to help, often they will do so in an emergency," says Sullivan. "Involving the department chairman in such calls may also be a good idea."
When patients need emergent evaluation by a specialist, Sullivan advises documenting when and how attempts were made to contact the specialist.
If multiple calls were made, documenting the timing of those calls will help to create a written record showing that reasonable attempts were made to contact the specialist or an alternate, says Sullivan and, if no specialist was available, that transfer was arranged in a timely manner.
EP Bears Responsibility
Ultimately, the EP bears the burden of responsibility for assuring that the patient receives necessary specialty care in a timely and appropriate manner, 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. However, sometimes consultants do not respond appropriately. Here are Garlisi's recommendations:
If a consultant is necessary, but unavailable, then the EP should arrange for transfer of the patient to an appropriate facility.
If the consultant is available but unwilling to examine the patient who needs hands-on specialty care, it behooves the EP to take additional necessary steps on the patient's behalf.
"This might mean requesting hospital leadership to intervene, or transfer the patient to another institution," says Garlisi.
"If anything, the problem is getting worse," says Jonathan D. Lawrence, MD, JD, FACEP, an ED physician and medical staff risk management liaison at St. Mary Medical Center in Long Beach, CA. "There are a lot of consultants getting upset because they are not getting paid. ED call panels are getting thinner. Where certain specialties were covered before, they may not be covered now."
If there is no official call panel for a given specialty, says Lawrence, "you are really at the mercy of the person who you call, because they have no legal obligation whatsoever to show up."
It's possible that a court might find the hospital liable because they didn't adequately reimburse physicians for being on the call panel, notes Lawrence.
"The EP is not personally liable in this case it's almost always the hospital which is on the hook here," he says. "The problem, though, is if the hospital is unhappy with the EP or the ED group, then their future at the hospital may be in jeopardy. So it's in the EP's interest to get these problems worked out ahead of time."
Lawrence notes that some hospitals are switching to reimbursement plans where specialists are paid for being on the panel whether the specialist gets a case or not.
"Of course, hospital budgets are tight, and it may be difficult to come to an agreement with a certain specialty," says Lawrence. "This, in turn, is a problem because of EMTALA [Emergency Medical Treatment and Labor Act] laws. These clearly state that the hospital has to stabilize a patient within the capabilities of the hospital."
If a type of case is routinely treated at the hospital, this would be considered within the capabilities of the hospital, adds Lawrence, regardless of whether there is a specialist on the call panel. All of this means added legal risks for the EP, says Lawrence, who is "caught between the proverbial rock and hard spot."
If the consultant is on the call panel, however, Lawrence says that you are on much firmer ethical and legal grounds to demand they come to the ED. This is where the relationship between the ED group and the medical staff becomes very important, he says.
"If they see you as just a glorified house staff, they are not going to treat you with the respect you deserve," says Lawrence. "If you have a good relationship, and they understand your group is capable and your medical judgment can be trusted, then they are less likely to dismiss a call to come in."
For more information, contact:
Chad Kessler, MD, FACEP, FAAEM, Section Chief, Emergency Medicine, Jesse Brown VA Hospital, Chicago. Phone: (312) 569-6508. E-mail: firstname.lastname@example.org
Andrew Garlisi, MD, MPH, MBA, VAQSF, University Hospitals Geauga Medical Center, Chardon, OH. Phone: (330) 656-9304. E-mail: email@example.com.
Jonathan D. Lawrence, MD, JD, FACEP, Emergency Department, St. Mary Medical Center,Long Beach, CA. Phone: (562) 491-9090. E-mail: firstname.lastname@example.org