Emerging Risks in the ED and EMTALA Update November 5, 2009 Program by Patient Safety & Risk Solutions LLC Presenter-Robert A. Bitterman, MD, JD, FACEP Introduction by Michelle Hoppes RN, MS CEO, PSRS ACCME Statement This activity has been planned and implemented in accordance with the Essential Areas and Policies of the Accreditation Council for Continuing Medical Education through the joint sponsorship of ELM Exchange, Inc. and Patient Safety Risk Solutions LLC. ELM Exchange, Inc. is accredited by the ACCME to provide continuing medical education for physicians. 1 2 Disclosure for ACCME Michelle Hoppes and Bob Bitterman are both healthcare consultants Objectives Top issues causing delays Process issues and solutions High risk presentations ti EMTALA update 3 4 Discussion Points Program Presenter Robert A. Bitterman, MD, JD, FACEP 5 Lessons Learned PIAA claims data EM claims experience Case law Delay Issues and System issues High Risk Encounters EMTALA Liability Prevention 6 1
Boarding Issue Ubiquitous In-house etiology and responsibility Increased morbidity and mortality Impact on ED patient care Source of civil litigation Crowding Issue Ubiquitous Etiologies EMTALA contribution ti Impact on ED patient care Source of civil litigation 7 8 Liability for Patients Waiting to be Seen Delay in triage New hot bed of litigation Adverse public relations Deaths in the ED waiting room 9 10 Failure to Adequately Triage Quality of nurses at triage sick patients Training, experience, education Interpersonal skills Advanced training in key areas Brightest and the Nicest 11 12 2
Failure to Reassess Patients Abandoned in the waiting room Reassess when, how, where, why? Repeat vital signs how often? Guidelines vs. mandatory EMTALA vs. standard of care Delay of Medical Screening Exam EMTALA mandate Appropriate MSE means prompt? Constructive ti denial of federal right Scruggs case in VA St. Joseph s Hospital case in CA FTFOR 13 14 Delay in Evaluating EMS Patients Cartoon Ignore EMS patients until accepted? EMTALA mandated MSE CMS memos obligation upon arrival Can still ask EMS to help, but must triage immediately and ensure EMS capable of monitoring patient s condition 15 16 Failure to Follow Hospital Policy and Procedure Growing area of liability Eg., Scruggs case, Florida AAA case Repeat vital signs in ED or at tdischarge MSE QMP PA vs. MD Chest pain protocols TNTC 17 18 3
Liability for Admitted or Boarded Patients in the ED Adverse outcomes lead to litigation Hospital liability Emergency physician liability Admitting physician liability Bright lines of responsibility and liability 19 20 Liability for Boarded Patients Failure to monitor boarded patients Failure to comply with admitted P&P Direct admits vs. admit after EP s MSE Failure of handoff from EP to admitting physician Liability for Patients Waiting for Admission Failure to monitor the patient Failure or delay in utilizing the full resources of the hospital: CT, antibiotics, on-call physician consults Failure to admit to correct unit Failure of handoff/communication between EP and admitting physician 21 22 Liability for Patients Waiting for Transfer Failure of on-call physicians to respond Failure to transfer promptly Failure to reassess / stabilize at the time of transfer Failure of handoffs between EPs ED Was Too Crowded Defense System overload / physician overwhelmed Totality of the circumstances EMTALA mandate no ability to control volume Jury not often sympathetic 23 24 4
Radiology Issues Preliminary readings / reports Teleradiology Quality considerations Communication Documentation Radiology Issues Over readings / final reports Timeliness and accessibility Variance system Communication Documentation 25 26 Midlevel Providers Scope of practice PA v. NP Supervision v. collaboration Mdi Medical staff tffprivileges iil Qualified medical personnel - MSE EMTALA transfers On-call to the ED for medical staff Midlevel Providers Negligent supervision or collaboration Fumbled handoffs Unauthorized practice of medicine i FTFOR policies and procedures Define role and set expectations 27 28 Midlevel Providers Know state laws Privileges Policies and procedures Effective communication Concrete supervision Defined role High Risk Clinical Encounters Chest Pain AMI, unstable angina Abdominal Pain acute abdomen Appendicitis iti AAA Back Pain cauda equina, AAA 29 30 5
Chest Pain Sutton s law of EM malpractice Numbers Nt t Not atypical Why? Chest Pain Why? Failure to know what you don t know Atypical is more typical than textbook (pain presentations the numbers) EKG errors Biomarker errors Failure to observe / consult / stress 31 32 Chest Pain Risk Management Approach PROVE the pain is something else, or rule out a cardiac etiology No diagnosis no discharge Risk factors irrelevant Know science of biomarkers / stress tests Discharge instructions / follow-up Chest Pain Why it s important to get this right Why we ll (probably) never get this right 33 34 Abdominal Pain Appreciate the value of time Reevaluate, reevaluate, reevaluate Discharge instructions ti Documentation Follow-up Why You Should NEVER Get Sued for Missed Appendicitis Risk avoidance failure v. clinical failure Reevaluation Communication Discharge Instructions / follow-up Documentation 35 36 6
Abdominal Pain in the Elderly Different protoplasm different disease 50-60% admitted; 30-45-% to OR 75% diagnosed, d 25% non-specific Mortality 9-10x > younger Greatest time consuming c/o in ED Abdominal Pain in the Elderly Work-up more extensively Value of bedside ultrasound Observe longer and reexamine more Consult and admit liberally Follow-up closely 37 38 Back Pain Severe pain is not an EMTALA EMC Patients ascribe symptoms to known parameters & preconceptions Value of bedside ultrasound Abdominal and neurological exam Cauda Equina Numbness, tingling, or weakness Bowel or bladder symptoms Neurological l exam Perineal sensation Get a gait 39 40 Cauda Equina Failure to recognize Failure to believe patient! Failure to order / delay MRI Failure / delay NSG consultation Can t walk; can t go home! Back pain discharge instructions EMTALA Civil Liability Separate cause of action Any individual harmed Not a malpractice claim Hospitals liable, not physicians 41 42 7
Interpretation of EMTALA There is no better way of exercising the imagination than the study of law. No poet ever interpreted nature as freely as a lawyer interprets truth. Plaintiff s Attorney s Creative Use of EMTALA Report, obtain government findings Access peer review data Establish duty of hospital/doctor Separate theory of liability Jurisdiction options 43 44 Civil Enforcement Failure to screen claims Failure to stabilize claims Failure to accept in transfer Failure to Screen Claims Appropriate MSE Failure to diagnose claims Disparate screening Failure to follow own rules Set own standards Accelerating liability 45 46 Failure to Stabilize Claim No longer applies to inpatients? See Moses case from 6 th Circuit But tdoes apply to the ED Discharges Transfers Federal malpractice act Failure to Stabilize Claim Actual knowledge EMC exists No stabilization Disparate stabilization ti Ordinary malpractice standard Motive irrelevant - Supreme Ct. 47 48 8
Smith v. Botsford Hospital $5M plaintiff verdict EMS incident report admissible PRO report inadmissible i ibl No standard of care evidence Objective standard for jury Failure to Accept in Transfer Hospital duty Delegated to whom? On-call physicians role Emergency physicians role Documentation - form 49 50 Accept or Reject Transfer Medically indicated transfers Emergency medical condition Specialized capabilities or facilities Capacity Appropriate transfers Accepting Hospital Issues No territorial limits On-call for the USA? No contingencies i allowed MCO or economics irrelevant Constructive denial 51 52 Avoiding Transfers Liability Define capabilities Define acceptance process Educate acceptors Educate and discuss with senders Monitor the system Additional Claims Inappropriate transfer Delay secondary to insurance Fil Failure to transfer timely Unresponsive on-call physician 53 54 9
Preempts State Tort Reform Federal preemption Procedural reforms Substantive ti reforms Governmental immunity Damages caps State peer review protections Avoiding Malpractice in EM Communicate to patients and families Nurses with best clinical and interpersonal skills in triage More frequent reassessments - and documented Recognize high risk scenarios 55 56 Avoiding Malpractice in EM Dr in Court Bright lines of responsibility and liability System solutions / policy and procedure Witt Written and dbacked kdby leadership Documentation is still key Discharge instructions still key 57 58 Questions? 59 10