Although any interaction between a patient and the healthcare system may result in litigation, it is clear that certain situations lend themselves to system failures. In 3% to 5% of malpractice cases, there is no easily definable pattern. There is an outcome that could not be predicted or mitigated against before the fact. Disease is infinitely variable, and there will be those cases that in the best of hands will have a poor outcome. However, in approximately 95% of cases, the failure in either medical decision-making or system logic is evident. Such cases can be and should have been avoided by proper communications and actions in advance. Such system failures are common to most EDs and constitute the vast majority of risk situations (Box 95-1).
The time period when one physician is coming on shift and another is going off is often regarded by experienced observers as an extremely dangerous time for both the healthcare providers and the patient. A casual passing of the baton from one physician or group of nurses to the next can allow the patient to “fall between the cracks.” The oncoming physician often feels confident that the patient has been properly worked-up, and the patient is frequently given a diagnosis before the oncoming physician's assumption of the case.
- Pearl: Change of shift is the dangerous time in the department.
Change of shift should be viewed as starting anew, and such times should not result in a lower standard of care for the patient. If, for any reason, a physician cannot properly complete the workup of a patient and such responsibility must be transferred to another physician, a proper and orderly transfer of responsibility must take place. It is important that the physician leaving the shift notes the patient's condition and the fact that the responsibility has been transferred to another specific physician and the specific time. Similarly, the physician coming on must acknowledge the condition of the patient and the program that will be followed. The physician discharging the patient should be considered the physician of record and should be considered the physician responsible for the discharge program.
Nursing has, within its role, the same responsibilities as physicians. Nurses who are going off shift or are leaving for break should ensure that the patient's care has been properly transferred to another nurse who will ensure that the observation program and any treatments or studies will be completed. The transfer of responsibility at the change of shift should be a formal and orderly process among not only healthcare personnel but the patient as well. The patient and family should never have any doubt as to who is in charge of the patient's care and who will direct further therapy and plan the discharge program.
Return Visits and Transfers
Patients who return to the ED with unscheduled visits, instead of being viewed as potential risk situations, are often treated as a medical annoyance. There is a tendency on the part of healthcare personnel to view such return patients as “doctor shopping” or having some underlying psychological problem, when in fact nothing could be farther from the truth. Careful studies have been done looking at return visits, 75% of the time the patients were poorly instructed, the disease process has taken an unexpected turn, or the initial diagnosis was wrong. This, combined with the fact that getting into the healthcare “nonsystem,” which is often through private physicians' offices, can be extremely difficult for many patients. Such inability to access the regular healthcare system should be viewed as a legitimate reason for returning to the ED.
Transfers from other institutions have in common with return visits the one thing that gives a false sense of security to the healthcare team and can represent a true impediment to rapid resolution of the problem. Such patients already have a diagnosis. Once a diagnosis is made in medicine, frequently all intelligent thought stops. There is a tendency on the part of healthcare personnel to assume that the original diagnosis for which the patient was seen on the first visits or the original problems identified at the first hospital before transfer are correct.
- Pearl: The transfer patient has the most dangerous thing … a diagnosis.
Experienced emergency personnel realize that transfers from another institution must be viewed as totally new patients. It is the conservative course of action for the emergency physician to workup transferred and second-visit patients as if they were new. It is proper for a physician to refer to previous histories and physical examinations performed and to be aware of previous diagnoses. It is important for the physician to realize that an independent history and physical at that moment should form the basis of a current clinical impression. It may also be important for radiologists to review studies despite a prior (and incorrect reading) from the outside hospital.
A rule that more and more emergency physicians are beginning to follow is that when a patient appears for the third time, admission should be strongly considered. It is always troublesome when a patient comes repeatedly to an ED. Such patients may have an ongoing medical problem that may not be clear. The fact that the patient has come to the ED thrice should indicate that somewhere along the line either the patient's true diagnosis has not been recognized or the patient does not understand the nature of the illness and the course of the disease. Such multiple interactions without progress toward a successful resolution should make the concerned healthcare professional anxious to properly resolve the problem.
Private Patients in the ED—Need for Medical Screening Examination by Emergency Physician
An important concept in both philosophy and law is that regarding patient ownership. It must be understood by all that doctors do not “own” patients. The opposite is true—patients own doctors. Doctors, and indeed the entire healthcare team, are the retained agents and servants of the patient. Patients can change healthcare institutions and physicians anytime they so choose. Whenever a patient comes to the ED, they become, by the very act of their appearing, patients of the emergency physician for at least that visit. The emergency physician has more than a duty; they have an absolute obligation to be aware of any and all patients who are in the department and their status at any time. The emergency nursing personnel have a similar duty to evaluate patients expeditiously and to keep the emergency physician informed of patients who are waiting to be seen. The EMTALA law clearly states that each patient must be evaluated to see if an emergency exists. There is no exemption in the law that says patients do not have to be seen if they have “their own doctor” coming to see them.
The hospital must go on record—and this must be conveyed to the medical staff at all levels—that patients entering the ED will be evaluated, and, if necessary, intervention will take place before the arrival of private physicians. The private attending physician has no right to place in jeopardy the healthcare institution and the ED personnel and the patient because of ego issues.
Private patients in the ED should be viewed as any other patient. They should be properly triaged and examined, and therapy should be started if they are in an urgent or emergent condition. There is no problem with properly transferring care to a private physician when he or she arrives.
- Pearl: No one is a private patient until their doctor is present and has taken charge.
Should the hospital, for the sake of convenience or political purposes, wish to provide an area where private attending physicians may meet their patients for nonemergent conditions, such an area can be provided. It should be away from the ED and should not be governed or included in those areas covered by the federal EMTALA statutes.
The Joint Commission (JCAHO) has classified EDs into 4 levels of care. Hospitals functioning at levels I and II are required to have on-call lists for physician specialists. (Further, through EMTALA, Medicare requires participating hospitals with JCAHO designations 3 and 4 to have on-call physicians.) Hospitals are essentially required to enter patients, for at least their immediate problem, into the healthcare system. The hospital and, by extension, the medical staff have a direct duty and obligation to care for emergent patients who have come to the ED. A physician who appears on the on-call panel in a hospital ED plays an essential role in the functioning of the healthcare system. When such physicians do not respond to calls to the ED or refuse to carry out follow-up care on patients seen in the ED, and the hospital and the emergency physician are forced to send the patient to another institution, potential violations of EMTALA may exist.
The issue of transferring and economic screening of patients is one of which the federal government is well aware. The EMTALA law is an attempt to channel hospital and medical staff energies in the direction that would provide greatest protection for the patients and yet leave the private practice of medicine intact. If such systems cannot be organized in a cooperative venture between the hospital and the governmental administration, there is no question that further federal action will move to secure such benefits for the denizens of the United States.
Several key points of the on-call panel are described in Box 95-2.
Box 95-2 Critical Points About the On-Call Panel |Favorite Table|Download (.pdf)
Box 95-2 Critical Points About the On-Call Panel
- The on-call list is the responsibility of the hospital, not the emergency ED. It is incumbent on hospital administrations to secure the services of physicians and to ensure proper entry of patients into the healthcare system.
- Care delayed is care denied. When on-call physicians are not available within a reasonable period of time and patients suffer harm secondary to such lack of care, the institution and the system are culpable.
- The practice of having consultant physicians screen potential emergency patients by inquiring about their financial status or ability to pay is legally prohibited under the federal EMTALA.
- Continuity of care and outpatient follow-up of emergency patients are paramount issues. Healthcare facility on-call panels must serve not only to come to the hospital to see patients, but should accept patients for outpatient management of care for at least the acute illness for which they are referred.
Patients who refuse to follow carefully considered medical advice should be considered high risk. Such patients have essentially announced that they do not respect or trust the professional judgments of the emergency personnel involved. Against medical advice (AMA) situations call into play 2 divergently opposed concepts in law: the concept of a patient's freedom versus the healthcare worker's duty to protect.
The patient's rights to self-determination are unquestioned. A patient of adult years and sound mind has the right to refuse any medical care offered. This virtually always runs counter to the entire question of communication and informed decision-making. The patient can always claim that he or she did not understand what was being presented by the healthcare personnel and therefore was prevented from making a proper decision. It is therefore essential that the charting on such cases recognize the major pitfalls in advance (see Box 95-3).
Box 95-3 Key Points in AMA
First, a patient or the family may claim that the refusal was uninformed because of diminished mental capacity. The first duty of the emergency staff is to properly document the mental capacity of the patient to make the decision to refuse care. A patient who is encephalopathic clearly lacks capacity; therefore the substitute judgment of the healthcare professionals involved may be appropriate. If, however, the patient is awake and alert, can carry on reasonable conversation and discuss the problems at hand, and has the mental ability to act in his or her own self-interest, the test for competency to exercise judgments on the patient's own behalf is usually met.
Second, in informed refusal cases, it is often claimed that the hospital personnel did not inform the patient in a manner that they could understand. It is important to inform and document that the patient was told in no uncertain terms of the desire of the healthcare professionals and the fact that such discussion was held in terms that the patient could easily understand. Euphemisms should not be used. If the medical staff is afraid of sudden death, the term death should be used. If they are afraid that injury to a limb might result in amputation, use of terms that clearly indicate that the limb may need to be removed should be used and recorded on the chart.
A third question in refusal of care revolves around alternative forms of treatment. Patients must be properly informed if there are alternative modes of treatment that would solve the problem, and they should be given opportunities to use such modes of therapy. When acceptable alternatives are not available, this should also be documented.
Fourth, involvement of family is crucial. Should the patient die as a result of noncooperation with the healthcare system, it is the patient's relatives who will bring action against the medical professionals involved. Family or friends who are with the patient must be aware of the patient's refusal. The hard-driving executive who may wish to deny his own chest pain is usually brought into more realistic thinking when he must deny care in front of his wife and children. Should the patient expressly forbid the medical staff from speaking to family or friend, such forbiddance must also be carefully documented. It is perfectly reasonable to inform the family that you have been denied the option to speak to them by the patient. This allows the family to understand that the patient, not the physician, is refusing to discuss the problems.
Last, and least important, is the patient's signature. The signature line on the chart is no replacement for a properly documented record. Many times patients who leave AMA do so in a hostile atmosphere and refuse to sign. The fact that the patient refused to sign should also be noted. The myth has long been advanced that as long as a signature is present the patient has waived his or her rights and has relieved the healthcare personnel of legal responsibility. This is not the case. Documentation of AMA requires the previously listed 4 parts of the process. A signature is not a substitute for a legal process, and the signature and the legal process must be accompanied by proper documentation if such situations are to be adjudicated in favor of the healthcare team. (See the sample form included at the end of this chapter.)
The attitude with which a physician approaches a patient in an “AMA” situation is critical to success. A “take it or leave it” attitude combined with a “my way or the highway” ultimatum frequently makes for noncompliance on the part of the patient. Such situations should not be confrontational.
AMA should be rare. If a physician has an AMA each shift; something is wrong ….
The patient who leaves before examination (LBE) or leaves without being seen (LWBS) or leaves prior to medical screening examination (LPMSE) constitutes a much different medicolegal problem than the patient who leaves AMA. Patients who leave AMA virtually always represent a doctor-patient communication problem. In the LBE situation, the doctor was not even given the opportunity to form a doctor-patient bond. Large numbers of LBE patients are system problems and usually represent prolonged waiting time. Analysis of lawsuits regarding emergency medicine found that suit rates go up almost exponentially after a patient has been waiting more than 2 hours. Hostility grows, and hostility is the basis of miscommunication and lawsuits. Substantial or rising LBEs should prompt a systems review to determine exactly why the patient flow is less than adequate. Long waits for labs and x-rays, difficulty in freeing beds because of inadequate or poor admissions procedures, or delays in obtaining needed consultations should all be reviewed to determine why patient flow is inadequate to meet the patient demands.
- Pearl: The last healthcare professional to see the patient writes the notes.
The emergency physician is occasionally involved with patients who are doing poorly on the medical and surgical floors. These in-house emergencies vary from cardiopulmonary arrest situations to assessing patients who have fallen out of bed to pronouncing patients dead. All such situations, however, have the potential for liability. Whenever the emergency physician is called out of the ED, they are no longer able to provide immediate care to those who may came through the ED doors. The absence of the emergency physician in the ED may spell disaster. Therefore leaving the ED should be an infrequent event and one that is prompted by true medical necessity. It is wise for the emergency physician to never contractually guarantee to answer in-house emergencies. The physician is by such action guaranteeing to be in 2 places at once.
- Pearl: Never agree to be in 2 places at the same time.
It is advisable for the emergency physician to agree to respond to in-house emergencies as would any other physician in the hospital. Part of the test of a Good Samaritan action is that it is performed outside the usual practice setting of the physician and that the physician has no established duty to provide such services. A contractual link might invalidate a physician's eventual Good Samaritan defense. It is also wise for the emergency physician not to be paid per patient for responding in such events. Direct payment for medical services on a prearranged basis will also invalidate a Good Samaritan defense.
It is not the role of emergency physicians to solve all problems of the hospital merely because they are available 24 hours per day. Should a patient become ill on the floor, hospital rules and regulations should clearly delineate the responsibility for the primary attending physician to evaluate his or her patient. If indeed the primary physician cannot attend to the patient for some reason, such patients can be brought to the ED, where the emergency physician has proper facilities and equipment and is not forced to leave the site of primary obligation.
House staff in the ED are often treated under 2 erroneous concepts:
- Young doctors learn from their mistakes,
- If young doctors are not ready now to see patients on their own, how can they be “graduated” from the program?
The premise of learning by mistakes is unsound educationally and morally. No one wants pilots to learn by their mistakes as they land their 747 without supervision. Educational theory would dictate that the only thing learned from mistakes is how to make mistakes. The great advantage of emergency medicine is that each patient can be supervised in an online, real-time manner by an attending physician, who can help the resident work through the decision process and intervene when the situation requires. No hospital gives a “training discount” reduction to patients because they have been seen by a resident in an unsupervised manner. The resident is a physician in training. Overall responsibility for every patient in the ED is borne by the attending physician. It is a cowardly act for an attending physician to blame the outcome of a case on the resident that they are supervising. Residents should be concurrently monitored and actively supervised while in the department. Federal law mandates attending physician involvement in every case.
- Pearl: Residents are just doctors in training.
A resident rotating through the ED from a specialty other than emergency medicine should be supervised in the same manner as an emergency medicine resident and should be considered to be less familiar with ED policies and procedures. Retrospective review of charts, although useful as a teaching tool, is no substitute for online, hands-on evaluation of patients and the care being given by residents. Billing for residents' services that are not directly supervised by the physician doing the billing should be considered an extremely high-risk activity. The attestation statements signed by physicians who sign up with various insurance companies generally state that they will charge for only those services that they personally render or supervise. Supervision from a distance is considered no supervision at all. The federal government and many states actively pursue physicians under a doctrine of fraud when they have rendered bills for services in which they have not been directly involved.
Residents frequently feel that because their malpractice coverage is paid for by the institution and they are covered under a doctrine of respondeat superior, they are immune from the ravages of lawsuits. This misapprehension should be corrected in all house staff in that they may be sued individually, may be forced to participate in any trial situation that arises, and are not exempt from being reported to the National Practitioner Databank.
An extremely touchy and often volatile situation involves off-service residents who are called down from the floor to evaluate patients in the ED. These physicians are still residents and are responsible to the physician in charge. It is often said by attending physicians on medicine and surgery services that their residents can function without reference to the emergency physicians and that they are essentially functioning “as their agents.” Such physicians are rarely willing, however, to sign statements that they will assume all responsibility, pay all costs, and have all reported losses against their name in the Databank.
The emergency physician bears the liability of all patients in the department until they have been properly transferred to another attending physician. The resident, no matter how advanced or from what service, cannot relieve the emergency physician from his or her responsibility to act in the best interests of the patient. Disputes on how a patient should be handled should be conducted between the emergency physician and the physician in charge of that resident. All dispute resolutions should be between parties of equal power who will bear equal responsibility. If an emergency physician believes a patient should not be discharged, that patient does not leave the ED regardless of the decision of an off-service resident.
Telephone Orders from Private Physicians
Outside physicians frequently do not appreciate the extent of liability that the hospital and emergency physicians may incur when a patient is treated without being examined by the emergency physician. Physicians may see patients in their office and wish them to have a medication or treatment that is not conveniently available in their outpatient setting. As a result, such patients are sent to EDs, and telephone orders are given to emergency personnel. This practice should be discouraged and eliminated whenever possible. There is no section of the hospital as tightly regulated by federal law as the ED. There is no exemption in the EMTALA statutes for patients being sent from outside physicians' offices. Although this practice is common, it is anachronistic and dangerous. Federal law requires that every patient who enters the ED requesting examination or treatment for a medical condition receive a medical screening examination. Nowhere does it indicate that patients may be treated without such an evaluation.
- Pearl: The telephone is your enemy.
Should the hospital wish to run an outpatient clinic for the convenience of its own physicians, such a clinic should be set up separately from the ED, and strict criteria should be laid out as to what can and cannot be done without concomitant physician evaluation.
Similar situations exist with regard to requests by medical staff, particularly screeners and gatekeepers from health maintenance organizations (HMOs), for the emergency physician to “just take a quick look” at a patient. Medicolegally, there is no such thing. When the emergency physician has agreed to see anyone to determine whether an emergency exists, a doctor-patient relationship is established. Such a visit must be memorialized with a chart, there is no exemption in EMTALA that says that if a patient is being looked at for an HMO or a preferred provider organization (PPO), the usual duties incumbent on the emergency physician are waived.
Many healthcare personnel are not aware that a doctor-patient relationship can be established with the telephone. It is not necessary that a patient physically enter the ED for such a relationship to exist. As soon as the patient requests medical advice and the healthcare professional is willing to give that advice, a doctor-patient relationship is established. The rule for the ED should be: We do not give telephone advice. Numerous studies have documented the poor quality of telephone advice, and common sense would dictate that with a patient not present, the most important clues to correct diagnosis and treatment are gone. It is both acceptable and advised that in a polite and caring manner patients are told that the ED is open 24 hours per day and will evaluate them for an illness. No patient asks a casual question. People seek advice from EDs hoping to do something with that information.
- Pearl: ED telephone advice—do not give it.
In no circumstance should advice be given that does not directly state that the patient must be seen and evaluated before any type of medical diagnosis or specific treatment can be given. Telephone advice reiterates the adage that you get exactly what you pay for.
Note that many healthcare systems do operate a protocol-driven telephone based “Ask a Nurse” program; this is different of course than ED nurses doing it “off the cuff”.