Malpractice Consult: Your responsibility for patients in the ED

May 16, 2008

Primary care physicians need to reduce risk when patients go to the emergency department.

Key Points

Emergency department use by adults in the United States increased by 16.8 million visits from 1997 through 2004, according to the journal Health Affairs. ED patients waited an average 30 minutes to see a physician in 2004, eight minutes longer than in 1997. Waits increased 11.2 percent per year for acute myocardial infarction patients. Blacks, Hispanics, women, and patients seen in urban EDs waited longer than other patients.

In this "accident ready to happen" scenario, patients who file lawsuits because their condition declined while they were in the emergency department are most likely to name the hospital, the ED physician, and the nursing staff. Primary care physicians, too, can incur liability if they referred the patient to the ED, were on call, or were called by the ED physician regarding admission criteria or other medical matters.

In one case, a family pediatrician advised a woman to take her baby to the ED. The ED nurse triaged the infant's condition consistent with EMTALA regulations and told the mother to wait for the physician. Half an hour later, when the mother again brought the baby to the nurse, the baby was dead. The mother sued the hospital, the nurse, the ED physician, and the pediatrician. The case was settled out of court for an undisclosed amount.

Evaluate the patient and the ED physician

The same advice applies any time you have a duty to a patient who is in the ED. If you're on call, you have a duty by virtue of your contract for privileges. If you're not on call, direct communication-like a telephone call from an ED staff member asking you to be the admitting physician or requesting a consult-is usually required to create a duty. You can refuse. Your acceptance, however, makes that patient a potential plaintiff and you a potential defendant should something go wrong.

To meet the standard of care, ask the ED physician to (1) describe the patient's symptoms and (2) indicate what he believes to be appropriate treatment. You must evaluate not only the severity of the problem, but also the training and expertise of the doctor on duty. If you think the patient's problem isn't serious or is something the ED doc can handle himself, then you can opt to walk him through it over the phone. But if you think it's serious or the ED doc is outside his area of expertise, consider going in. ?

The author, who can be contacted at lj@bestweb.net
, is a healthcare attorney in Mt. Kisco, NY, specializing in risk management issues. This department deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Woodcliff Lake, NJ 07677-7664. You may also fax your question to us at 201-690-5420 or e-mail it to memalp@advanstar.com
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