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Plaintiff attorneys allege inadequate ED staffing contributed to patients’ bad outcomes in medical malpractice cases. Typical allegations include:
A man collapsed at a convenience store and was brought by ambulance to the ED, but apparently was neither triaged nor treated. “The emergency physician was in the back, treating other patients, and had no knowledge of the patient being in the waiting area,” says Christine Oliver, CPHRN, assistant vice president of Western Litigation in Houston.
The man was in the ED for over an hour before someone alerted the triage nurse that he was not moving. The man was rushed to a treatment room. “The emergency physician attempted to revive the patient; however, the patient’s skin was already mottled and some indications of rigor mortis were already settling in,” Oliver says. During initial stages of the case, the plaintiff attorney obtained a triage record for the man. However, the patient had not been triaged. This was evidenced by the hospital’s own security video, which showed no evidence of anyone bringing the patient to the triage room, nor did ED nurses (or anyone else) ever check on him. “The triage record appears to have been falsified,” Oliver says. The lawsuit against the hospital and the emergency physician (EP) included these allegations:
The defense countered that it would not have been possible for the EP to monitor the entire ED, and that is why triage nurses and other ED staff are needed. “Until the patient is triaged, that patient is not going to be put up on the board for the EP to know about,” Oliver says. The plaintiff’s side responded that the EP should have been checking with nurses on which patients were waiting to be seen.
The plaintiff attorney alleged that the triage nurse was an LPN, not an RN, and wasn’t properly trained to perform triage duties.
It was difficult for the hospital to claim it was unaware of the situation, since the ED’s staffing problems had been reported in the local news. “The EP can’t go back and forth between treating patients and going out to see who is in the waiting room,” Oliver says.
Bad outcomes for patients waiting to be seen have put ED staffing practices under legal scrutiny. Despite this, many hospitals continue practices that result in crowding and understaffing.
“A lot of hospitals have made policy decisions to let their EDs be overcrowded and malfunctioning in order to protect the rest of the hospital,” says Andy Walker, MD, FAAEM, a Signal Mountain, TN-based EP who offers legal consultation on the defense of EPs. “Hospitals have chosen to accept some liability exposure for understaffed EDs.”
Boarding admitted patients in ED hallways is a common practice, with well-recognized risks. “The cost of fixing that problem is higher than the cost of lawsuits,” Walker notes. “What really costs them a tremendous amount of money is canceling elective surgeries so they won’t move admitted patients upstairs from the ED.”
Walker says EPs avoid many malpractice suits by becoming experts at workarounds. “Even though the hospital ought to be fixing the problem and doesn’t, the EDs come up with creative ways to get around the hospital’s malfeasance,” he adds.
Some EPs have reported concerns about understaffed EDs to no avail, then find themselves defendants in a lawsuit when the inevitable bad outcome occurs. The ED defense team can convincingly argue that the EP was doing everything possible, but the hospital had made providing good care impossible because the ED was understaffed. “There are lots of situations where the EP and the hospital end up being antagonists,” Walker laments.
Some EPs might even find themselves testifying against the hospital on behalf of the plaintiff. Suddenly, the hospital has a big incentive to settle the case, on the condition that the individual EP is dismissed. “That is probably why we aren’t hearing about some of these lawsuits, because of confidential settlements,” Walker adds.
Walker once became aware of problems with order entry software that put patients at risk. He informed a hospital administrator, “If I’m the unlucky doctor whose patient is injured or killed because of this software, I’m going to be an enthusiastic witness for the plaintiff.”
As part of an independent, democratic ED group, Walker had some protection from termination by the hospital. However, EPs who are employees of the hospital or an ED staffing corporation “can be fired at the drop of a hat without peer review or due process,” Walker says. “So, they absolutely cannot speak their minds.”
If the ED group is an independent, physician-owned group, and the hospital has contracted with it to staff the ED, that physician group might be held liable for understaffing, Walker adds. This is because the physician partners in that group decide how many EPs and midlevel providers to hire, and how many people to put on duty at any one time. “On the other hand, if the EPs are hospital employees and have begged the hospital for more staffing without success, then staffing levels are completely beyond their control,” Walker says.
The same is true if the ED is staffed by a large national contract group or staffing company. That company decides how many providers to put on duty at any one time, usually, but not always, in consultation with the hospital. Therefore, the group carries liability exposure for understaffing. “But the EPs who work in that ED have absolutely no decision-making power, and cannot fairly be held liable for understaffing,” Walker says.
Most EPs can be fired without cause, without any peer review, or without due process. The exceptions are those who work for a democratic physician-owned group, where bylaws typically dictate that an EP can’t be fired without a majority vote of the partners. “Unfortunately, very few EPs own their own practices and the number is dropping,” Walker laments. “The fundamental problem is almost no EPs have the job security they need to stand up for patients.”
“Whistleblower” employee protections are available for EPs who are employees of the hospital for issues related to the federal False Claims Act or Medicare or Medicaid fraud. If an EP reports that the hospital is fraudulently billing, or that the hospital is pressuring the EP to upcode for billing purposes, the EP can sue the hospital if he or she is terminated as a result. “But even then, they can fire us without cause,” Walker cautions. “If we report an understaffed ER, it would be the right thing to do ethically. But there is no legal protection.”
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor), Amy Johnson, MSN, RN (Manager of Accreditations), Stacey Kusterbeck (Author), Diana Nordlund, DO, JD, FACEP (Author), Jonathan Springston (Editor), Jesse Saffron (Editor), and Terrey L. Hatcher (Editorial Group Manager).