INSIDE Many Future ED Malpractice Claims Will Need to Survive Gross

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JUNE 2020 Vol. 31, No. 6; p. 61-72 INSIDE Long-standing gross Many Future ED Malpractice negligence standard for ED claims . . . . . 63 Claims Will Need to Survive

Hospitals face legal exposure from ED Gross Negligence Standard providers...... 64 nacted protections offer emer- claims for gross negligence to refute and gency department (ED) provid- avoid any liability protections put in Claims allege hospital retaliated against Eers some immunity from liability, place,” Koob says. employees who except for gross negligence and willful Some claims are going to assert it complained...... 65 and wanton conduct.1 This leaves plain- was gross negligence for a hospital to be tiffs’ attorneys with just one option for understaffed at a time when a surge of Successful med/mal suits if admitting orders are pursuing a medical negligence case. patients is anticipated, Koob predicts. ignored...... 66 “There will inevitably be an increase Defense counsel can counter this allega- in allegations that actions or inactions tion with proof that hospitals made ev- Delayed care allegations previously considered to be ordinary ery effort to appropriately staff the ED. face some additional negligence instead constitute gross “Plaintiffs may attempt to argue that hurdles ...... 68 negligence,” says Katharine C. Koob, the hospital’s actions were reckless and Telehealth consults and Esq., an associate at Post & Schell in in wanton disregard for the well-being psychiatric patients’ Philadelphia. Koob says examples of of their anticipated patient population unique legal risks. . . . 70 conduct that could rise to the level of in order to allow their clients’ cases to gross negligence in the ED include: proceed,” Koob explains. Liability worries of ED volunteers appear • failing to respond in a timely man- The definition of gross negligence largely unfounded. . . 71 ner to a patient who is coding; varies from state to state. “It can range • administering an incorrect medica- from a slight lack of diligence to con- tion to a high-risk patient; scious disregard for the well-being of • failing to adhere to policies and others,” says Amy Evans, JD, executive procedures in place to prevent the spread vice president of the liability division at of COVID-19 (e.g., permitting untested Intercare Insurance. potential carriers into the ED despite Allegations of gross negligence, visitor restrictions). “Plaintiffs’ attor- intentional conduct, assault, and battery neys will undoubtedly begin to set forth generally are excluded from professional

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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), Michelle Myers Glower, MSN, BSN, RN, NEA-BC, CNEcl (Nurse Planner), Stacey Kusterbeck (Author), Jonathan Springston (Editor), Jill Drachenberg (Editor), Leslie Coplin (Editorial Group Manager), and Amy M. Johnson, MSN, RN, CPN (Accreditations Director). liability insurance coverage, Evans says. Courts consider sworn state- notes. ments and testimony from fact

TM Plaintiffs occasionally plead these witnesses and independent experts, allegations because it allows for medical records, and licensing board ED Legal Letter (ISSN 1087-7347) is recovery of punitive damages, treble findings, among other evidence. published monthly by Relias LLC, 1010 Sync St., Ste. 100, Morrisville, NC damages, and/or attorneys’ fees. Evans says cases alleging gross 27560-5468. Periodicals postage paid at “Talented plaintiff attorneys negligence are likely to survive when Morrisville, NC, and additional mailing offices. POSTMASTER: Send address plead general medical negligence another healthcare provider involved changes to ED Legal Letter, Relias LLC, 1010 Sync St., Ste. 100, Morrisville, NC in addition to gross negligence and in the care supports the allegations 27560-5468. occasionally assault and battery, de- the plaintiff asserts. Another scenario GST Registration Number: R128870672. pending on the facts,” Evans reports. that could lead to survival is when Pleading gross negligence, she adds, there are allegations of inappropriate SUBSCRIBER INFORMATION Customer Service: (800) 688-2421 “can also allow certain egregious and behavior. “It is difficult to obtain customerservice@reliasmedia com. ReliasMedia .com potentially prejudicial information dismissal of ‘he said/she said’ types into evidence that may otherwise be of allegations,” Evans says. “They are ACCREDITATION Relias LLC is accredited by the excluded.” generally seen as credibility issues for Accreditation Council for Continuing To defend against gross negli- a jury to decide.” Medical Education (ACCME) to provide continuing medical education for gence allegations, ED providers and Regardless of whether a gross neg- physicians . hospitals will need to show that they ligence claim survives, ED providers Relias LLC designates this enduring material were as prepared as possible under still endure the lengthy, costly litiga- for a maximum of 1 5. AMA PRA Category 1 Credit(s)™ . Physicians should claim only the circumstances. tion process. credit commensurate with the extent of their participation in the activity . Also, providers must show they “The ability of a claim to proceed followed evolving recommendations will likely be visited, and revisited, at Relias LLC is accredited as a provider of continuing nursing education by the of federal and local health authorities. several points throughout the life of American Nurses Credentialing Center’s If they can do that, says Evans, the case,” Koob says. Commission on Accreditation . Contact hours [1 .5] will be awarded to participants “gross negligence claims are going to Claims almost certainly need who meet the criteria for successful completion . California Board of Registered be very difficult to sustain, let alone to proceed through the pleadings Nursing, Provider CEP#13791 . prove.” stage as well as the lengthy discovery This activity is intended for emergency When a plaintiff attorney pleads process. All that must play out before physicians and nurses . It is in effect for 36 gross negligence or intentional a judge will consider dismissing the months from the date of the publication . conduct, a judge decides whether action based on liability protections Opinions expressed are not necessarily those of this publication, the editors, or the claim can proceed through final created by legislation or executive the editorial board . Mention of products or judgment. order. “The judge will undoubtedly services does not constitute endorsement . Clinical, legal, tax, and other comments “The plaintiff bears the burden of want to ensure that all of the relevant are offered for general guidance only; professional counsel should be sought in proof with regard to the allegations information has been gathered before specific situations . they assert,” Evans explains. denying the right of a plaintiff to as- AUTHOR: Stacey Kusterbeck The defense has two opportunities sert a cause of action,” Koob explains. EDITOR: Jonathan Springston to challenge whether the plaintiff has Some cases will end up dismissed EDITOR: Jill Drachenberg EDITORIAL GROUP MANAGER: Leslie met their burden, says Evans: before trial. However, it is likely Coplin ACCREDITATIONS DIRECTOR: • Before trial: The defense can file many judges will determine a jury Amy M . Johnson, MSN, RN, CPN dispositive motions, such as motions needs to decide whether the actions © 2020 Relias LLC . All rights reserved . No to dismiss or for summary judgment. at issue rose to the level of “gross part of this newsletter may be reproduced • During trial: The defense can in any form or incorporated into any negligence.” information-retrieval system without the bring motions for directed verdict, “In that scenario, the case will written permission of the copyright owner . arguing to the court there is insuffi- need to be tried to verdict before a cient evidence to support the plain- healthcare provider benefits from any tiff’s allegations. potential liability protections,” Koob “Most courts take allegations of observes. Actions that arguably rep- intentional conduct against health- resent ordinary negligence (e.g., poor care providers very seriously,” Evans clinical judgment or mistake) may

62 | ED LEGAL LETTER / June 2020 ReliasMedia .com be designated as gross negligence. system and be heard by a jury. Li- REFERENCE “Cases in which the care rendered ability protections might ultimately 1 . American Medical Association . falls in a ‘gray area’ will likely result shield the ED provider from a verdict Liability protections for health care in a determination by a judge that or judgment. “But it may be highly professionals during COVID-19 . the care could be found to be grossly costly and time-consuming to arrive Updated April 8, 2020 . negligent,” Koob says. This permits at that final determination,” Koob https://bit .ly/2xu4d9U the case to proceed through the legal adds. n

Long-Standing Gross Negligence Standards for ED Malpractice ome states enacted stringent Additionally, the plaintiff must prove mistake led to the patient’s death. S standards for asserting medical the provider knew of the risk in- “But the court found a reasonable malpractice claims against emergency volved, and proceeded with conscious basis in the evidence for the jury’s department (ED) providers long be- indifference to it. conclusion that the nurses neither fore the COVID-19 pandemic. “The first element is objective. The disregarded what they knew to be In Texas, a “willful and wanton second is subjective, meaning that it pain of a cardiac origin, nor allowed negligence” requirement has applied requires evidence of a provider’s actual a patient to be discharged whom they since 2003 to healthcare liability knowledge,” Silver explains. knew to be in an unstable emergent claims that arise out of the provision Plaintiff attorneys occasionally condition,” Silver notes. The evidence of emergency medical care.1 argue in medical malpractice cases showed only that the nurses failed to “This is an exceptionally difficult that gross negligence occurred. “It is exercise reasonable care. standard to meet,” says David A. difficult to find examples of cases in • The parents of a baby whose Hyman, MD, JD, professor of which they succeed,” Silver says. Here shoulder was dislocated during health law and policy at Georgetown are three examples of unsuccessful birth sued the obstetrician and the University. attempts: hospital, claiming negligence.4 Plaintiff attorneys in Texas prob- • In a 2016 case, the Texas Court “The Texas Supreme Court af- ably will decline to take most cases of Appeals ordered that summary firmed a partial summary judgment involving ED treatment going for- judgment be granted in favor of the in favor of the doctor, agreeing with ward, according to Hyman, “which, defendants, who failed to diagnose the trial court that proof of willful in turn, should result in a reduction rhabdomyolysis.2 and wanton negligence was required, of malpractice premiums for ED This ultimately caused the patient and that the doctor’s conduct did not physicians.” to develop compartment syndrome meet that standard,” Silver explains. The Texas statute permits a and suffer an amputation. “The court One of the few malpractice cases plaintiff to recover for mistreatment found no evidence that the physicians that did succeed in proving gross when the provider “departed from departed from the standard of case negligence involved some unusually accepted standards of medical care” so greatly as to create a severe risk egregious circumstances. The physi- and the claimant establishes by a of harm, and no evidence that they cian defendant was on probation preponderance of the evidence that knew of the risk to the patient and and subject to a disciplinary sanction provider committed “willful and ignored it,” Silver reports. imposed by the Texas Medical Board.5 wanton negligence.” • A patient died of a heart attack “Hospital bylaws apparently “The ‘willful and wanton’ stan- a few hours after discharge from the prohibited physicians on probation dard has been taken to mean gross ED; the family sued. from being on staff,” Silver observes. negligence,” says Charles Silver, JD, The court of appeals sustained “Other doctors on staff testified that a professor of law at the University a jury verdict in favor of the nurses the doctor was a problem.” n of Texas at Austin. To establish gross on staff, even though there was no negligence, Silver says a plaintiff must disagreement that the patient was REFERENCES prove the provider’s act or omission misdiagnosed.3 After reviewing the 1 . Texas Civil Practices and Remedies involved an extreme degree of risk. evidence, the court agreed the nurses’ Code Ann . § 74 .153 .

62 | ED LEGAL LETTER / June 2020 ReliasMedia .com ReliasMedia .com ED LEGAL LETTER / June 2020 | 63 2 . Ho v. Johnson, No . 09-15-00077-CV, (Texas App . 2011) . Center and Dr. Gary Boyd and the 2016 WL 638, 046 (Texas App . Feb . 4 . Texas Health Presbyterian Hospital of ETMC Digestive Disease Center, 18, 2016) . Denton v. D.A., 569 S .W .3d 126, 128 Cause No . 16-0853-C in the 241st 3 . Christus Health Se. Texas v. Licatino, (Texas Dec . 21, 2018) . District Court in Smith County (Texas 352 S .W .3d 556, 559 5 . Billy Pierce v. East Texas Medical January 2018) .

Hospitals Bracing for Litigation from Infected ED Providers ospitals expect plenty of litiga- work. One big hurdle for ED provid- that the infection happened at work H tion from emergency depart- ers is that a workers’ compensation and not at home or in the commu- ment (ED) providers who have claimant generally needs evidence of a nity, the higher the likelihood of the contracted COVID-19, often while work-related exposure. “The question employees’ success,” says Jonathan working without adequate personal will be, ‘How do we know where they Sumrell, JD, an attorney in the Rich- protective equipment (PPE).1 were infected?’” Moran explains. mond, VA, office of Hancock, Daniel Undoubtedly, some EDs will Hospitals can counter that the & Johnson. see more claims than others. “Most virus is not just in their ED, it is • Private personal injury lawsuits litigation arises from an emotional everywhere in the community. “But brought by ED staff. “Many of these place. If there’s a perception that the this may not be an issue for many cases will likely include a battle about hospital was doing everything they healthcare workers who are working the appropriate forum for these types could, there will be fewer claims,” says directly with patients sick with the of claims,” Sumrell predicts. Domenique Camacho Moran, JD, a virus, because it may be clear that After contracting Ebola while car- partner at Farrell Fritz in Uniondale, they contracted the virus at work,” ing for an infected patient in 2014, NY. says Sloane Ackerman, JD, counsel an intensive care unit nurse sued the The Coronavirus Aid, Relief, and in the New York office of O’Melveny hospital. The lawsuit alleged the hos- Economic Security (CARES) Act of- & Myers and a member of the firm’s pital provided inadequate guidance fers liability protections for malprac- labor and employment practice. and training on what kind of PPE to tice claims made by patients.2 “How- In addition, some states are mak- wear, and failed to have appropriate ever, there are no protections in the ing it easier for healthcare workers policies, procedures, and equipment CARES Act as it relates to potential to apply for workers’ compensation in place.7 claims brought by employees against by creating a presumption that the Eventually, the case was settled, their employers,” says David E. employee contracted the virus on the but whether the case could be tried Renner, JD, an attorney who works job.3,4 “It remains to be seen whether in the courts (or whether workers’ on employment and employee rela- these laws will be enforced,” says compensation was the only recovery tions for Post & Schell in Pittsburgh. Ackerman. possible) became an issue during If hospitals can prove they fol- Trade groups are fighting the litigation. lowed generally accepted standards in expansions, arguing they will cause “The case is instructive in part the community and complied with higher insurance premiums. The Illi- because it shows where battle lines federal, state, and local guidance, says nois Workers’ Compensation Com- might be drawn in COVID-19 cases,” Renner, “that should go a long way mission repealed its “presumptive” Sumrell notes. to help defend against these types of rule, after a judge issued a temporary Certain ED staff may try to assert claims.” restraining order blocking the rule in claims in court. Hospitals are going The following are some claims that response to a lawsuit filed by multiple to argue that the claims should go ED nurses, ED staff, or emergency business associations.5,6 through the workers’ compensation physicians (EPs) may bring against Some EDs are seeing far more system instead. “Healthcare workers hospitals: cases than the infection rate in the may assert wrongful death or other • Workers’ compensation claims community at large. That kind of data tort lawsuits if they are exposed to filed by employees who say they could be used to support an employ- COVID-19 while at work,” Acker- were infected with COVID-19 at ee’s claim. “The more they can show man says.

64 | ED LEGAL LETTER / June 2020 ReliasMedia .com The biggest hurdle is that in • Anonymous complaints filed Nationwide, ED nurses have nearly all states, workers’ compensa- by employees regarding workplace protested being forced to work with tion insurance is the only remedy for hazards. Under the general duty inadequate PPE.9 If an ED nurse was work-related illnesses. clause of the Occupational Safety disciplined or terminated for taking “There are some narrow exemp- and Health Act (OSHA), employ- part, says Renner, “the hospital could tions in certain states, such as if the ers generally are required to provide be facing liability for violating their employer engaged in an intentional “a place of employment ... free from rights under the NLRA.” n wrongful act,” Ackerman notes. recognized hazards ... likely to cause There are states that could allow death or serious physical harm.”8 REFERENCES claims to be brought in the courts “As such, if there are claims of 1 . Bronstad A . Lawyers predict a ‘huge if a hospital’s conduct was particu- inadequate PPE being provided by explosion’ in worker class actions larly egregious. “An employee would hospitals, those hospitals could be fac- over COVID-19 . Law .com, April 16, have an uphill battle to successfully ing an OSHA investigation,” Renner 2020 . https://bit .ly/2W07eIw bring these claims in court,” Sumrell warns. 2 . Congress .gov . H .R .748 - CARES Act . observes. • “Failure to accommodate” https://bit .ly/2WogsNU ED providers would have to show claims under the Americans with 3 . Sams J . Regulators and lawmak- the hospital’s gross negligence resulted Disabilities Act. These claims can ers introducing workers’ comp to in their infection. “When confronted come up if an ED provider with a COVID-19 . Claims Journal, April 20, with claims of gross negligence, this physical impairment asked for special 2020 . https://bit .ly/3aXi9a5 is really going to be splitting hairs,” PPE, but the hospital never provided 4 . Illinois Register . Workers’ Compensa- Moran says. it. tion Commission . Notice of Emer- One of the challenges is that “Employers are required to accom- gency Amendments . April 16, 2020 . guidance has shifted so dramatically. modate their employees’ disabilities. https://bit .ly/2Yz79Nx “What was right on March 10 might That includes making accommoda- 5 . Eggert T . After injunction, IWCC be somewhat different than April 20,” tions in the use of PPE,” Renner votes to repeal emergency rule . Moran cautions. explains. Chicago Daily Law Bulletin . Updated Establishing exactly what policies • Claims under the Families First May 1, 2020 . https://bit .ly/35tDJSA the hospital was operating under on Coronavirus Response Act. This 6 . Illinois Manufacturers’ Association et a particular date, or what supplies contains anti-retaliation protections al. v. The Illinois Workers’ Compen- were available (or not) on that date for employees who use allowable paid sation Commission, et al., 20 CH 98 could prove to be tricky. For instance, sick leave. If an ED provider is termi- (Illinois 7th Judicial Circuit Court) . if an ED nurse alleges an infected nated or disciplined for doing so, says 7 . Texas Health Resources v. Pham, No . co-worker was allowed to come back Renner, hospitals could face claims. 05-15-01283-CV, 2016 Tex App . to work too soon, the outcome of the • Liability for violating employ- 8 . 29 U .S .C . § 654, 5(a) . claim will hinge on what the guidance ees’ rights under the National Labor 9 . National Nurses United . Nurses was at that point. For the hospital to Relations Act (NLRA). Employers nationwide to hold 139 ‘May Day’ ac- defend itself, says Moran, “it is really are prohibited from taking adverse actions demanding COVID-19 protec- important that someone is download- tions against employees for engaging tions for nurses, health care workers . ing guidance on a daily basis.” in protected “concerted activity.” April 30, 2020 . https://bit ly/3c4LOzt.

Enforcement Action Likely if Hospital Retaliates Against ED Staff ome emergency department COVID-19 patients without N95 Health Administration] or state S(ED) doctors and nurses allege masks.1,2 “Depending on who the whistleblower protection laws,” says they were disciplined or fired after complaint was made to, and the David E. Renner, JD, an attorney complaining about inadequate specific complaint made, the hospital who works on employment and personal protective equipment could have retaliation claims under employee relations issues for the law (PPE), or for refusing to treat OSHA [Occupational Safety and firm of Post & Schell in Pittsburgh.

64 | ED LEGAL LETTER / June 2020 ReliasMedia .com ReliasMedia .com ED LEGAL LETTER / June 2020 | 65 At the federal level, OSHA prohibits certainly looks suspicious. That kind Physicians . ACEP strongly supports employers from retaliating against of timing helps the employee prevail emergency physicians who advocate employees who communicate with in a retaliation claim. “Hospitals will for safer working conditions amidst management about occupational need to thoroughly document why pandemic . March 30, 2020 . safety or health matters, among other they took an adverse employment https://bit .ly/3feQfKa things.3 In April, OSHA reminded action,” Sumrell stresses. 2 . American Nurses Association . ANA employers that it is illegal to retaliate It always is possible the ED nurse disturbed by reports of retaliation against workers because they was fired because of misconduct or against nurses for raising concerns report unsafe working conditions.4 budget cuts. If so, “documentation about COVID-19 safety . April 9, 2020 . Additionally, OSHA issued an showing that decision-making https://bit .ly/2z3PGCl interim enforcement response plan process would be key for employers,” 3 . 29 U .S .C . §660(c) . with instructions regarding the Sumrell says. 4 . U .S Department of Labor’s Occu- handling of COVID-19-related Evidence substantiating the pational Safety and Health Admin- complaints.5 The plan says onsite misconduct, and that the hospital istration . U .S . Department of Labor inspections will prioritize high- followed its disciplinary policies, is reminds employers that they cannot exposure settings, which certainly helpful for the defense. “In no event retaliate against workers reporting includes EDs. should an employee’s complaint unsafe conditions during coronavirus “This is an area that will likely see be a factor in the decision to take pandemic . April 8, 2020 . some enforcement focus by OSHA in adverse action against them,” Sumrell https://bit .ly/35vy5PO the coming months,” says Jonathan underscores. “Employers are taking 5 . U .S Department of Labor’s Occupa- Sumrell, JD, an attorney in the a huge risk if they don’t heed that tional Safety and Health Administra- Richmond, VA, office of Hancock, advice.” n tion . Interim enforcement response Daniel & Johnson. plan for coronavirus disease 2019 If an ED nurse is fired the day REFERENCES (COVID-19) . April 13, 2020 . after complaining about PPE, it 1 . American College of Emergency https://bit .ly/2YtUdc1

No ICU Bed? ED Patients ‘Fall into Black Hole’ ven emergency departments suboptimal management,” observes fault,” Dolin acknowledges. However, E (EDs) that do not normally Sumner, a Tucson, AZ, medical failure to prioritize care appropriately board admitted patients might have malpractice attorney. for the patient who remains in the been forced to do so when the first A hospital is obligated to act ED is a different story. surge of COVID-19 patients began reasonably, says Gregory Dolin, “If a reasonable EP would have taking up all the intensive care unit MD, JD, an associate professor of put person A into the ICU and not (ICU) beds in March and April.1 law at the University of Baltimore. If person B, that can be a med/mal is- This adds to the legal risks of this a patient is stuck in the ED because sue,” Dolin explains. practice considerably, according to there are no ICU beds available, a In terms of malpractice, the main Stephen Colucciello, MD, FACEP. reasonable hospital cannot change question is going to be: Did the ED “If suddenly a third of ED patients that fact. But if an admitted, boarded patient receive treatment as fast as he are boarders, that’s a very high-risk ED patient deteriorates, “that may be or she should have, given the relevant situation. There’s lack of awareness a malpractice issue,” Dolin cautions. circumstances? “That applies to the of what is supposed to happen,” says The plaintiff can allege the emer- real world, not a hypothetical make- Colucciello, a professor of emergency gency physician (EP) did not act as a believe world where you can get ICU medicine at North Carolina-based reasonable doctor would. “The emer- admission at a moment’s notice,” Atrium Health. gency physician must act reasonably Dolin notes. David Sumner, JD, has handled under all the relevant circumstances,” EDs in known COVID-19 many cases involving ED patients Dolin notes. hotspots with long waits for ICU beds waiting for an inpatient bed to Coronavirus patients taking up all probably will be treated somewhat become available. “Patients can the available ICU beds clearly is a rel- differently than smaller community fall into a black hole of poor or evant circumstance. “That is nobody’s EDs, where it was mostly business as

66 | ED LEGAL LETTER / June 2020 ReliasMedia .com usual. “The law requires the judge and the admitting hospitalist assessed the • Certain specialty organiza- jury to take the circumstances into patient, but gave no verbal orders. tions specifically address this issue. account,” Dolin says. “How will they The ED nurses never gave the If transfer of admitted patients to do that in the jury deliberation room IV fluids. Only after the patient was inpatient units is delayed, the hospital is entirely unpredictable.” transferred to the floor was the order must provide the supplemental nurs- It largely depends on the evidence carried out. During subsequent litiga- ing staff necessary to care for the pa- both sides present. That does not tion, the ED nurse testified that it tients boarded in the ED, according mean the EP has to (or should) me- was not their responsibility to execute to an American College of Emergency ticulously document everything going admitting orders. The floor nurses Physicians (ACEP) policy.1 on in the ED at the time. testified it was not their job to do so Another ACEP policy states that “The goal is not to document in until the patient was physically trans- regardless of the location of an admit- Patient A’s chart what is happening to ferred. “The case settled at mediation ted patient within the hospital, the patient B — or in the ER in general,” prior to any expert depositions,” ultimate responsibility for an admit- Dolin says. Sumner says. ted patient’s medical care rests with If all ED charts are in good order, The patient had already expe- the admitting physician.2 “Should an the records as a whole will tell the rienced substantial delays before emergency occur, the EP should in- story. A picture emerges of what was going to a room. Once in a room, tervene,” Colucciello adds. “But non- happening in the ED at the time. “It the patient waited even longer for an emergencies depend on the admitting depends on the quality of recordkeep- evaluation. physician.” ing — or the quality of lawyering,” “There were delays on top of more • ED nurses can contact the Dolin reports. “Sometimes, it just delays to provide this patient with admitting team regarding all orders. depends on juries’ idiosyncrasy.” adequate fluid resuscitation,” Sumner “That hands the baton to admitting, Some malpractice claims for says. which is where it should rest,” Coluc- boarded ED patients happen because Ideally, the admitting physician ciello offers. admitting orders were ignored. Anti- personally examines the patient in • There are hospitals that have biotics were not given, for instance, the ED. If not, says Sumner, “the ED instituted policies directing floor even though the patients spent many staff may have a heightened duty to nurses to care for boarded ED hours in the ED. “The ED nurses still vigilantly assess the patient await- patients. It needs to be clear whether were used to following only those ing a bed assignment and transfer.” only “stat” orders are handled by inpatient orders that were marked Even if the admitting doctor does ED nurses (and routine orders are ‘stat,’ and by practice, left other orders see the patient in the ED, “the ED handled once the patient is moved to to the inpatient nurses,” Colucciello nurses are still responsible for execut- the floor), or whether floor nurses will says. ing proper orders and treatment until come to the ED to manage all orders. In many claims involving ED the patient physically leaves the ED,” “Ideally, ICU nurses would come boarding, “critical orders written by Sumner adds. down to manage boarded patients. the admitting MD went unexecuted Until all of the following happen, But that does not happen very fre- for a significant period.” Floor nurses EPs are potentially liable, according quently,” Colucciello says. do not take responsibility for admit- to Sumner: • Hospital policies can directly ting orders until the patient is physi- • The patient has been accepted address rounding on admitting cally relocated. ED nurses say the for admission; patients in the ED. “If in the ICU floor nurses are the ones responsible • The hospitalist or admitting phy- the patients are rounded on each for orders because the patient already sician has written or entered admit- shift, then ICU patients in the ED is admitted. ting orders on the chart; need to be rounded on with the same A recent malpractice case involved • The patient has been physically frequency,” Colucciello says. delayed care of an ED patient who relocated to the floor. Even without a policy, ED leader- presented with acute pancreatitis. Colucciello says there are a few ship can secure an agreement from Admission orders for intravenous ways defense attorneys can establish the admitting team that they will (IV) fluids were written 15 minutes that the admitting team, not the ED round on ED patients at certain later, but the patient stayed in the team, was legally responsible for the intervals. “But it’s not their usual ED for three hours. During this time, boarded patient: practice,” Colucciello notes. “What

66 | ED LEGAL LETTER / June 2020 ReliasMedia .com ReliasMedia .com ED LEGAL LETTER / June 2020 | 67 happens is they hope the patient will physician actually verbally accepted and whether ED nurses told the EP come upstairs, and they will be able the patient at 4:00 and saw the pa- the patient was in trouble. If the to do business as usual.” tient at 4:30. patient was in trouble, did the EP Orders for labs, diagnostic tests, The EP can bump up the time responded appropriately? pain management, and medications frame for when the admitting took “We could still lose a case where cannot just wait indefinitely. That responsibility by making a note of the patient decompensates in the means someone has to take action it. The EP might chart something ED, but only for things we should while the patient is in the ED. “The like, “At 4:00, spoke to Dr. Jones, have known about, and only where reality is that the patient belongs to who agrees to admit the patient,” we failed to intervene appropriately,” admitting,” Colucciello argues. “The Colucciello suggests. The plaintiff can Colucciello says. n patient just happens to be temporarily argue the EP still was liable because housed in the ED.” something was missed, or because the REFERENCES • EPs can clarify the exact time patient was not stabilized adequately. 1 . [No authors listed] . Boarding of the admitting physician took “There are a lot of strategies that the admitted and intensive care patients responsibility for the patient. In plaintiff attorney will employ,” Coluc- in the emergency department . Ann the electronic medical record (EMR), ciello says. Emerg Med 2017;70:940-941 . the time stamp might indicate that In seeking to keep the EP in 2 . American College of Emergency at 4:42, the patient was admitted to the case, the plaintiff attorney will Physicians (ACEP) . Responsibility for Dr. Jones. That is when the admitting scrutinize whether the EP knew the admitted patients . Policy statement . orders were put in, but the admitting patient’s condition was deteriorating Ann Emerg Med 2015;65:130 .

Delayed Care, Misdiagnoses Still Happening, Regardless of COVID-19 Surges ust because there are surges of Rashbaum, “it would be difficult for “The problem is, we haven’t really had Jrespiratory patients in the emer- a properly instructed jury to find li- a situation like this since 1918. And in gency department (ED) does not ability against the caregivers.” 1918, medical malpractice was virtu- mean there are any fewer stroke, heart Particularly egregious delays or ally unheard of,” West notes. attack, or septic patients. misdiagnoses could result in verdicts In this legal climate, ED claims are There will not be fewer lawsuits, for plaintiffs. “But those cases would most likely to be successful if delays either, if any of these patients receive be outliers,” says Rashbaum, a partner are such that it “shocks the conscience delayed care or are misdiagnosed, ac- at New York City-based Barton. In of a reasonable person,” West ob- cording to John C. West, JD, MHA, light of this reality, “the more respon- serves. A good example of such a case DFASHRM, CPHRM. sible plaintiffs’ law firms, who evaluate is a recent malpractice lawsuit alleging “The future of litigation can be their cases well at intake, will be likely a delayed evaluation of a patient with summed up in one word, and that’s to decline cases in which ER delays diabetic ketoacidosis. The patient was ‘tsunami,’” says West, principal at during the pandemic are alleged,” not given a medical screening exami- West Consulting Services, a Signal Rashbaum adds. nation, as is required by the Emergen- Mountain, TN-based risk manage- On the other hand, liability protec- cy Medical Treatment and Labor Act ment and patient safety consulting tions do not stop anyone from suing. (EMTALA), for longer than 11 hours. firm. “The courts have to allow these cases “That was pretty egregious,” West Remember the definition of to go through the normal process,” acknowledges. “The issue was whether medical malpractice, says Kenneth West says. “They can’t circumvent the screening was appropriate if it was N. Rashbaum, JD: a departure from things just because the situation was excessively delayed.” community standards of care that not normal at the time of the injury.” The vast majority of ED misdiag- proximately causes injury or other West says that, in general, courts nosis cases West sees involve patients damages. If an ED adhered to com- do not take emergency situations into who were sent home, only to return a munity standards during the pan- account when determining if medi- short time later in much worse shape. demic, but delayed for a patient, says cal malpractice cases can go forward. Those cases fall into two categories:

68 | ED LEGAL LETTER / June 2020 ReliasMedia .com • The diagnosis was not manifest have made the correct diagnosis. If as nonresponsive. “The plaintiff attor- at the time of the original ED visit. there is any delay in recognition of ney will say, ‘I am asking only about “In those cases, almost invariably, the stroke, sepsis, or heart attack, says this patient,’” West explains. person is diagnosed with something West, “juries don’t want to hear In reality, the standard of care relatively minor and comes back excuses.” might well have been different at the acutely or dangerously critically ill,” Jurors look specifically at the care time of the plaintiff’s ED visit vs. West explains. This happens often that the patient received — whether “normal” times. “The standard of care with sepsis. “Sepsis is hard to recog- it met the standard of care and, is a very flexible thing. It is not carved nize in its early stages,” West admits. if not, whether the breach of the in stone somewhere,” West notes. Patients initially present with some standard of care caused the injury. During depositions, EP defendants aches and pains, but are not overtly The COVID-19 pandemic does not can testify that reasonable colleagues septic. In cases like this, “it’s a toss-up change that, West stresses. “The fact would triage the priority of all the dif- as to whether there will be liability,” that you delayed the diagnosis of a ferent patients assigned to them. If the West offers. stroke patient because you were full of ED was full of COVID-19 patients In one case, a woman presented respiratory cases and had nowhere to at the time, says West, “the standard with hip pain and a pimple on her put them is not going to be a defense,” of care for normal circumstances goes cheek that turned out to be an abscess. he cautions. out the window.” “She was septic, but not in full-blown How well the EP handled the However, the entire defense can- sepsis. That was an EMTALA case,” surge of cases is what is relevant. EPs not hinge on all the other respiratory West recalls. The patient was in the cannot hire more staff, nor can they patients the ED was seeing. This only (intensive care unit (ICU) for four create more beds in the ED. “But they serves to support the argument that months, during which time both her have to figure out how the make the the EP rushed through the evaluation legs were amputated below the knee, best use of the staff and beds they do of the patient whose care is at issue. she lost the sight in one eye, and she have,” West underscores. “It could look like the doctor talked developed severe and permanent lung Plaintiff attorneys pursuing misdi- to the patient for a matter of seconds, damage. “The damages were capped agnosis cases will ask defendant EPs and made a premature diagnosis by Virginia law at $1 million,” West about their usual practices. EPs can without actually considering all the reports. expect this kind of question: “Do you available evidence,” West offers. In a case with a similar fact pattern, normally see stroke patients with a If a misdiagnosed patient experi- a woman presented with an injured el- door-to-doctor time of 30 minutes or enced a terrible outcome, says West, bow from a fall injury, but without an less?” If the EP agrees that is the case, “the hospital saying, ‘We were so open wound or fever. The woman was the next step is to corner the EP into busy that we couldn’t do X, Y, or Z’ discharged with pain medication and agreeing that he or she considers this is not good enough. Once all the an X-ray. It turned out the condition time frame to be the standard of care. [COVID-19] panic subsides, it may was necrotizing fasciitis; the woman “Then, [plaintiff attorneys] will no longer seem like it was such an lost her arm. Since that diagnosis jump on the doctor and say, ‘But in emergency.” The plaintiff attorney can would not be on a reasonable emer- this case, you didn’t see the patient for argue, “We know you had a lot of pa- gency physician’s (EP) differential for two hours,’” West warns. tients. But you could have done better an elbow injury, the EP was not held EPs might start talking about the for this patient.” complete and utter havoc that ex- liable. “A reasonable EP would not do “The law has never dealt with a isted in their department because of situation like this,” West says. “This is a blood culture if somebody injures COVID-19. The plaintiff attorney can new, and how the courts deal with it their elbow,” West adds. move to strike that kind of testimony is anyone’s guess.” n • The diagnosis is manifest at the time of the ED visit, but someone misses it. “Those are pretty clear-cut COMING IN FUTURE MONTHS negligence cases, and are very difficult What new stroke guidance means Lawsuits target incidental findings to defend,” West says. The plaintiff for ED malpractice claims in admitted ED patients argues that had the EP complied with Some EPs have more than their Successful defenses to allegations the standard of care and performed share of malpractice lawsuits of delayed ED transfer the appropriate tests, he or she would

68 | ED LEGAL LETTER / June 2020 ReliasMedia .com ReliasMedia .com ED LEGAL LETTER / June 2020 | 69 Psychiatric Patients Pose Unique Legal Risks During Pandemic f an emergency department (ED) employment, financial problems, and in predicting violence risk.4 “These Iis packed with respiratory patients, difficulty accessing outpatient care. If may protect against liability,” Saxton psychiatric patients could end up litigation against EDs arises alleging observes. Some statutes offer immu- boarded for hours or days. This is not negligent care of psychiatric patients, nity for patient violence where there good for patients, and creates liability there are some factors likely to become was no explicit threat, but how much exposure for EDs. “If somebody does an issue: protection varies. Also, certain statutes fall through the cracks, there’s poten- • Some states have enacted li- are specific to mental health profes- tial for some really bad outcomes,” says ability protections for healthcare sionals. “How much protection would Scott Zeller, MD, vice president of professionals during the pandemic, be offered to ED physicians who are acute psychiatric medicine at Vituity but psychiatric care is not specified.3 conducting mental health evaluations in Emeryville, CA. “One important question is whether depends on a state’s specific defini- Telepsychiatrists can help emer- all types of ED care would qualify, tion of a mental health professional,” gency physicians (EPs) with risk assess- including psychiatric services,” Saxton Saxton notes. ment, disposition, and treatment, says says. Statutes are subject to interpreta- Adrienne Saxton, MD, an assistant • Expert testimony would be re- tion by courts. This means EPs could professor of psychiatry at Case West- quired to establish the hypothetical be held liable for violence that was ern Reserve University in Cleveland. standard of care for a psychiatric pa- reasonably foreseeable, even in the Even if a bad outcome occurs, the tient in an overwhelmed ED during absence of overt threats. “ED physi- consult shows the EP took the case a pandemic. “As in other malpractice cians generally know how to man- seriously by seeking specialist advice. cases, experts on opposing sides may age patients making explicit threats “That makes it more difficult to prove disagree,” Saxton says. of violence,” Saxton explains. Most the EP’s care was negligent,” Saxton • Arranging dispositions for EPs would consult psychiatry and/ explains. patients with mental health and or arrange for inpatient psychiatric Due to recent telemedicine waivers substance use concerns has become hospitalization for these patients. EPs for COVID-19, EDs can access men- harder. Certain substance use treat- probably face greater liability exposure tal health professionals easier.1 Previ- ment programs, intensive outpatient for a different group of patients: those ously, Medicare restricted this only programs, and community mental who do not make explicit threats, but to rural sites. Many urban EDs also health agencies have closed. Others remain at acutely elevated risk. “This needed teleconsults. “It always made switched to phone or virtual sessions. may go undetected,” Saxton adds. sense for multiple settings. It should Concurrently, group homes, nurs- A good example is a case never have been restricted to rural ing facilities, state hospitals, and other involving a young man brought to settings. But that was all Medicare inpatient psychiatric units are increas- the police for barricading himself was permitting,” Zeller observes. For ingly scrutinizing admissions to pre- in his basement due to paranoid now, telehealth is making it possible vent COVID-19 outbreaks. “Psychia- delusions. The patient’s history to better use the limited number of trists and social work teams can help included schizophrenia, violence, psychiatrists available to EDs. “Unfor- overwhelmed emergency department and treatment non-adherence. “If tunately, sometimes it takes a crisis for physicians navigate these challenging he is calm in the ER, minimizes his something to become obvious to the issues,” Saxton says. situation, and promises to restart powers that be,” Zeller notes. There • Despite liability protections his medication, the EP may be are no current published data showing that are now in place, there are tempted to discharge the patient,” that higher numbers of patients with continued legal risks for EPs if a Saxton says. However, this patient psychiatric conditions are presenting to psychiatric patient is discharged and clearly is at elevated risk of acting EDs during the pandemic. “However, harms themselves or others. “Liabil- violently. “If a bad outcome occurs some predict a mental health crisis in ity for patient violence is a complicated after discharge, the ER physician the wake of COVID-19,” Saxton says.2 area of law,” Saxton says. Many states is at risk of liability, especially if he There are many reasons, including have enacted statutes addressing this, did not seek specialist consultation,” more domestic violence, massive un- due to the well-established difficulty Saxton says. Saxton recommends EPs

70 | ED LEGAL LETTER / June 2020 ReliasMedia .com consider a consult to psychiatry (for This probably is not sufficient to 2 . American College of Emergency risk assessment and disposition) in justify discharging the patient.5 “If Physicians . Joint statement for care these specific situations: patients with there are other factors going on that of patients with behavioral health active psychotic symptoms, patients raise concern, consider a consult to emergencies and suspected or con- with agitation or mania, patients with psychiatry to investigate further,” firmed COVID-19 . some evidence of suicidality (e.g., Saxton says. This may reveal previously https://bit .ly/2W10IkT recent suspicious ingestion or injury), unknown risk factors, such as a suicide 3 . New York Gov . Andrew Cuomo . patients who engaged in a recent note or escalating substance abuse. Executive Order No . 202 10:. Con- violent act or have violent fantasies “Sometimes, the patients most in tinuing temporary suspension and (despite denial of current plan or need of psychiatric assistance deny or modification of laws relating to the intent for violence), and patients with minimize their symptoms in order to disaster emergency . March 23, 2020 . a psychotic disorder who present with be discharged,” Saxton adds. n https://on .ny .gov/2R44A1E medication side effects that necessitate 4 . Knoll IV JL . Psychiatric malpractice a significant change in their treatment REFERENCES grand rounds: The Tarasoff dilemma . plan. “These changes could exacerbate 1 . Centers for Medicare & Medic- Psychiatric Times, Sept . 27, 2019 . symptoms and acutely elevate risk of aid Services . Physicians and other https://bit .ly/2W3Vyo4 violence,” Saxton reports. ED charts clinicians: CMS flexibilities to fight 5 . Resnick P, Saxton A . Malpractice li- often contain the words “patient COVID-19 . April 29, 2020 . ability due to patient violence . Focus denies suicidal/homicidal ideation.” https://go .cms .gov/2yv0Ujp (Am Psychiatr Publ);17:343-348 .

Liability Protection Not Absolute for ED Volunteers mergency physicians (EPs) serving coronavirus patients, even though such of willful, wanton, grossly negligent, Eas volunteers during the pandemic care may be directly impacted by the reckless, or criminal conduct, or an have broad liability protections under pandemic,” Yohey offers. intentional tort. the Coronavirus Aid, Relief, and Eco- The issue of liability for volunteer “One reason these laws were en- nomic Security (CARES) Act. physicians during an emergency is acted is the erroneous belief that there “These are not absolute protec- “widely misunderstood, with many have been many lawsuits filed against tions,” notes Leslie Isaacman Yohey, unfounded concerns about potential healthcare providers for harms caused JD, MBA, an attorney in the Memphis liability,” says Mark A. Rothstein, JD, during a public health emergency,” office of Baker Donelson. director of the Institute for Bioethics, Rothstein observes. “In fact, there have Generally, gross negligence is Health Policy, and Law at the Univer- been zero such lawsuits.” never excluded from liability. “Simply sity of Louisville. “Anecdotally, I know If a malpractice case were brought, because these liability protections exist there is concern about liability. Those a different standard of care could ap- does not mean that providers won’t get extremely concerned don’t volunteer.” ply. “Many physicians are concerned sued,” Yohey adds. Hospital administrators also are that they would be held to the regular She recommends volunteer emer- worried. “Hospitals also may have standard of care, which they could gency department (ED) providers some concerns, but that is why they not meet because of the extraordinary verify their malpractice insurance have malpractice insurance,” Roth- conditions,” Rothstein says. covers voluntary service. Hospitals stein notes. In addition to protections However, the law in every state is should check that volunteer provid- under the CARES Act, several federal clear on this point: A healthcare pro- ers are covered under the hospital’s and state laws grant immunity from vider’s duty is to do what is expected malpractice insurance. Additionally, malpractice liability to volunteer physi- of a reasonably competent practitioner leaders should look to relevant state cians in an emergency. One example acting in the same or similar circum- law to determine the extent of liability is the Uniform Emergency Volunteer stances. “Thus, physicians rendering protections related to volunteers. Health Practitioners Act. This protects care without electricity, sterile supplies, “In addition, protections may volunteer health practitioners from or medicine are not held to a higher not extend to care provided to non- damage liability, except in those cases standard of care,” Rothstein says. n

70 | ED LEGAL LETTER / June 2020 ReliasMedia .com ReliasMedia .com ED LEGAL LETTER / June 2020 | 71 CME/CE QUESTIONS

1. Which is true regarding hospitals’ 3. Which is true regarding malprac- TM liability for emergency depart- tice risks involving ED patients PHYSICIAN EDITOR ment (ED) providers who con- waiting for an intensive care unit Arthur R. Derse, MD, JD, FACEP Director and Professor, Center for Bioethics and Medical tracted COVID-19 on the job? (ICU) bed? Humanities, Institute for Health and Society Medical College of Wisconsin a . The CARES Act shields hospitals a . Boarding admitted patients due Milwaukee from exposure to claims brought by to no ICU beds available consti- NURSE PLANNER Michelle Myers Glower, MSN, BSN, RN, NEA-BC, CNEcl ED staff . tutes negligence on the part of the Clinical Instructor Keiser University b . Employees cannot recover under emergency physician (EP) and the Sarasota, FL workers’ compensation because hospital . EDITORIAL ADVISORY BOARD Kay Ball, PhD, RN, CNOR, CMLSO, FAAN there is no way to conclusively b . Jurors will be instructed not Consultant/Educator Adjunct Professor, Nursing prove the infection was contracted to take availability of resources Otterbein University Westerville, OH at the hospital . into account when determining

Robert A. Bitterman, MD, JD, FACEP c . Some states are modifying rules negligence . President Bitterman Health Law Consulting Group, Inc . so infected workers are presump- c . EPs are expected to document Harbor Springs, MI tively eligible for workers’ compen- specifics on volume surges to show Melanie Heniff, MD, FACEP, FAAP sation . why a patient waited for an ICU Assistant Professor, Clinical Emergency Medicine Indiana University School of Medicine d . Failing to provide appropriate bed . Indianapolis personal protective equipment d . Liability will depend on whether Kevin Klauer, DO, EJD Chief Medical Officer generally constitutes gross negli- the ED patient received treatment TeamHealth Knoxville, TN gence, regardless of extenuating as quickly as he or she should have, Jonathan D. Lawrence, MD, JD, FACEP circumstances . given the relevant circumstance . Emergency Physician St . Mary Medical Center Long Beach, CA 2. Which is true regarding malprac- 4. Which is true regarding legal risks William M. McDonnell, MD, JD, FAAP Medical Director, Blue Cross Blue Shield of Nebraska tice claims and the gross negli- of psychiatric patients presenting Adjunct Professor, Pediatrics University of Nebraska Medical Center gence standard? to the ED? Omaha, NE a . State immunity protections a . EPs generally cannot be held Larry B. Mellick, MD, MS, FAAP, FACEP Vice Chairman, Academic Affairs enacted due to the COVID-19 pan- liable for a bad outcome if they spe- Interim Section Chief, Pediatric Emergency Medicine Assistant Residency Director demic are required to include gross cifically document “patient denies Professor, Emergency Medicine University of South Alabama negligence . suicidal/homicidal ideation ”. Mobile, AL b . Plaintiff attorneys can allege b . Despite liability protections that Gregory P. Moore, MD, JD gross negligence instead of are now in place during the pan- Attending Physician Mayo Clinic ordinary negligence to pursue demic, there are continued legal Rochester, MN Maricopa Medical Center claims despite enacted liability risks for EPs if psychiatric patients Phoenix protections . are discharged and harm them- William Sullivan, DO, JD, FACEP Attending Physician, St . Margaret’s Hospital c . Pleading gross negligence bars selves or others . Spring Valley, IL Clinical Instructor, Department of Emergency Medicine plaintiffs from recovery of punitive c . EPs have liability immunity in Midwestern University, Downers Grove, IL Law Office of William Sullivan, Frankfort, IL damages . cases in which there was no explicit

Ken Zafren, MD, FAAEM, FACEP d . Cases alleging gross negligence threat . Clinical Professor, Emergency Medicine Stanford (CA) University Medical Center are less likely to survive if another d . Teleconsults are linked to mal-

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