Law and Medicine Rounds
By Dainius A. Drukteinis, M.D., J.D.
“The only real mistake is the one from which we learn nothing.”
- John Powell
Timing in the Emergency Department
From a patient care standpoint, as well as a liability standpoint, the timing of interventions in the Emergency Department is often crucial. In medical malpractice cases, plaintiff’s attorneys highlight unduly long periods of time for critical treatment, and juries may be unsympathetic to prolonged delays. In an Emergency Department bursting with patients, the allocation of time is one of the greatest challenges for the emergency medicine physician.
In O’Shea v. State of New York, 2007 N.Y. Misc. LEXIS 386, a patient presented to an Emergency Department having cut off two fingers with a table saw. The injury occurred at 6:30 p.m. The patient was triaged at 7:19 p.m. The emergency medicine physician saw the patient at 7:42 p.m. X-rays were performed at 11:33 p.m. Orthopedics was finally consulted at 1:00 a.m., more than five-and-a-half hours after the patient presented to the Emergency Department. Orthopedics arrived at 1:30 a.m. The wounds were stitched closed by orthopedics at 2:00 a.m. Reimplantation of the saved digits could not be performed within eight hours from the time of injury as an operating room would not have been available that quickly.
An expert witness in the malpractice case testified that eight hours for reimplantation of digits is
“...about the upper limit without trying to break records”The emergency medicine physician was found negligent for not contacting orthopedics sooner. Due to this prolonged period of time, among other negligent acts by orthopedics, the patient and his wife were awarded $525,000.00.
In retrospect, it is easy to see how five-and-a-half hours seems too long when we focus all of our attention on one patient, especially in the courtroom. When that time is broken down, however, we see how easily it can occur. Registration of the patient may prevent ordering studies. There are bottlenecks in radiology due to limited resources. The same patient may require other interventions such as labs, antibiotics, and pain medications. Sicker patients in the Emergency Department may divert our attention and require more of our time. This problem is compounded when consults pressure us to “package” patients before they are consulted, i.e. with all of their labs, studies, and radiographs completed.
In the Emergency Department, it is important to recognize system failures and distractions that will undermine timely interventions and consultations. Perhaps “packaging” every patient before contacting the consulting service is unwise. Finally, whatever the systems failure or distraction, it must be remembered that it is the emergency medicine physician who is ultimately accountable for those delays in time. We are responsible for making it happen.
8 comments:
Perhaps this is a silly question:
Do the circumstances in the department at the time of injury pertain to the issue of liability (or shift degree of liability between individual physician and hospital). For instance, if the physician in this case could document that his management of this patient had been delayed because he was managing 7 critically injured life and death patients before seeing this patient, would that shift the liability from the doctor (as an issue of negligence) to the hospital (as an issue of inadequate staffing)?
Do the courts hold as a legal standard that all patients will recieve perfectly timed, and perfect care in all cases, or do the circumstances in which that care is given play a role in determination of liability?
Great comment. The standard of care for the physician is not "perfect" or "ideal" care. The standard of care is what a reasonable physician would have done under the circumstances. This takes into account the circumstances of the Emergency Department at the time, such as the number of critical patients present. In some instances the physician-in-charge may have control over those circumstances and sometimes the circumstances will be out of the physician's control.
If, for instance, a physician during a natural disaster or large-scale terrorist attack is faced with an unexpectedly high number of critical patients, the physician would be required to use the disaster guidelines to triage those patients. Patients whose lives are at stake, and have a reasonable chance of recovery, may take priority over patients whose limbs are at stake. In such a case, the reasonable physician may be required to attend to life-threatening injuries over strictly limb-threatening injuries. On the other hand, if the circumstances are not so dire and there are mechanisms in place to contact backup physicians or divert patients to other hospitals, it may be the physician-in-charge who is liable.
The question of transfer of liability to the hospital is more difficult. In general, an employer is liable for an employee's negligence or carelessness under the doctrine of respondeat superior. This doctrine assigns ultimate liability to an employer for damage caused by an employee's carelessness. The relationship between doctors and hospitals, however, does not always fit so easily into the employer-employee relationship. Depending on the situation, the doctor may be considered more of an independent contractor to the hospital. Nevertheless, a hospital may be accountable for circumstances that lead to patient injury outside of the physician’s control, such as inadequate staffing, inadequate supply of medications, or carelessness of ancillary staff hired by the hospital, such as technicians.
Great discussion.
Thanks for the response dainius! That's really informative! I'm always impressed when people can translate legalize into comprehensible english..
Dr. J.
Although I agree in principle, I don't think the "busy ER" argument would hold up in this case. If you have detached fingers on ice, you know you're going to need ortho. The patient was triaged and seen before 8:00 pm. Waiting another 5 hours to call ortho was egregious, whatever else was going on in the ER. Couldn't the triage nurse be authorized to call in the consult?
Who says that ortho is the magic person here? I've seen PRS (plastic/recon surgery) get involved in these kinds of incidents before.
Its easy to look back now and say "ortho is the man" but thats not necessarily clear at the time.
I've had several times where I had to call multiple consults and go back and forth between them because they didnt want to accept the case.
Maybe ortho was consulted only after PRS rejected the patient.
Triage nurses would riot if you told them they were responsible for ordering consults.
they typically arent keen on expanding their work load.
I deal with docs all the time that have similar stories. It's difficult to manage patient care that's out of your hands. However, the legal point article also don't point out what the physician wasn't doing.
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