Emergency Medical Services Liability Litigation

We know that in-hospital trauma professionals are at risk for litigation. But what about prehospital providers? Unfortunately, there is painfully little literature for us to go on. In this case, I was only able to dig up a single 20 year old paper to help provide a little guidance. 

A retrospective review was conducted of data from a computerized database (note that I did not say online; this was from the birth of the internet) of court cases filed against EMS agencies nationwide. It specifically looked at ambulance collisions and patient care incidents. 

Here are the factoids: 

  • Only 76 cases were identified over a 6 year period (!!)
  • Collision and patient care suits were divided nearly 50:50
  • In ambulance collisions, the other motorist was likely to sue (78% of cases)
  • With patient care issues, 93% of the plaintiffs were the patient (who were the other 7%??)
  • The most common collision occurred in an intersection, or was a rear-end accident 
  • The most common patient care issues were arrival delay, inadequate assessment, inadequate treatment, patient transport delay, or failure to transport
  • About half named an EMT or paramedic as codefendant
  • 41% of suits were closed without any payment to plaintiff, but there were 5 cases with awards greater than $1M US (and this was in 1994!)

Bottom line: Yes, EMS providers do occasionally get sued. It is probably more likely today than it used to be given the legal climate in the US. Providers need to be familiar with the common reasons for lawsuits involving them, and always practice within their scope and in compliance with protocols and medical direction. Whether specific individual liability insurance is needed is a local and regional thing, and should be negotiated with your particular employer.

Reference: Emergency medical services liability litigation in the United States: 1987 to 1992. Prehosp Disaster Med 9(4):214-220, 1994.

Malpractice Risk By Specialty

Just how big a risk is physician malpractice (in the US)? A large database study covering nearly 41,000 physicians over a 15 year period was analyzed for claims frequency and payout information. They looked at how many physicians in each specialty faced a claim in a given year, whether a payment was made, and calculated the cumulative career malpractice risk for each specialty.

Here are the factoids:

  • The highest risk specialties were neurosurgery, CV surgery, general surgery, orthopedic surgery, and plastic surgery. Here is the breakdown of percent claims and percent claims with payout to the plaintiff in any given year:
    • Neurosurgery 19% – 2.5%
    • CV surgery 19% – 3%
    • Gen surg 15% – 3%
    • Orthopedics – 14% – 3%
    • Plastics – 13% – 2.5%
  • The lowest risk specialties were dermatology, family practice, other, pediatrics, and psychiatry. The breakdown of claims and claims with plaintiff payout is as follows:
    • Derm 5% – 1%
    • Family practice 5% – 1%
    • Other 4% – 1%
    • Peds 3% – 0.5%
    • Psych 2.5% – 0.5%
  • The overall annual risk of being sued in a high-risk specialty was 16%, and of paying money to a plaintiff (losing the case) was 4%
  • The overall annual risk of being sued in a low-risk specialty was 7%, and of paying money to a plaintiff was 1.5%
  • Median payouts were as follows:
    • Neurosurgery $215K
    • General surgery $180K
    • Orthopedics $100K
    • Anesthesia $90K
    • Emergency medicine $80K
    • Plastics $60K
  • The cumulative career risk of a claim was 99% for high-risk specialties and 75% in low-risk ones
  • The cumulative career risk of having to pay a plaintiff in high-risk specialties was 33% vs 5% for low-risk

Bottom line: This data is old (10-15 years) but you get the picture. Most physicians, especially those who happen to take care of trauma patients, will definitely get sued in their lifetime. Any many will end up losing a suit. But this is not necessarily because they are taking care of trauma patients, only because of the specialty they ultimately chose.

Reference: Malpractice risk according to physician specialty. NEJM 365;7 629-636, Aug 18,  2011.

Family Presence In Trauma Resuscitation: A Lawsuit Risk?

Nearly two decades ago, the Emergency Nursing Association (ENA) resolved that family presence during resuscitation and invasive procedures was a patient right. They thought that it was beneficial both to the patient and their family members.

As you might imagine, this was hotly contested by emergency physicians and trauma surgeons for years. Shortly after the release of the resolution, a survey was sent to members of the American Association for the Surgery of Trauma (AAST, trauma surgeons) and the ENA (nurses). This survey was designed to gauge the attitudes and beliefs of their members with respect to family presence during trauma resuscitation.

Here are the factoids:

  • The entire AAST membership (813) and a random 10% of the ENA membership (2988) were polled
  • Response rate was 43% overall, not bad
  • AAST members tended to be male, older, and had more trauma experience (duh!)
  • 98% of AAST members thought that family presence was inappropriate, vs 80% of ENA members
  • A similar proportion of members believed that family presence would interfere with patient care, increase stress on the trauma team, and increase malpractice risk
  • All differences were statistically significant (sort of)

Bottom line: This was a weird study. If you look closely at the numbers, it appears that the same surgeons and nurses answered all the questions exactly the same way. The n for each question is virtually the same, plus or minus five respondents.  

And a lot has changed in the past 15 years. This study took place when the family presence concept was relatively new. Attitudes have changed considerably, and family presence, especially parents of children, is much more routine. 

There is still little data, but anecdotal experience would indicate that there is probably less likelihood of lawsuits when family is present. It is the ultimate good communication, and in cases resulting in death, the family member can see that the team is doing everything possible for their loved one. 

But remember, don’t just throw family members into your resuscitation room. Assign a nurse as a “medical interpreter” to explain what is going on, make sure they do not impede the team, and keep them from keeling over on the floor and getting hurt.

Reference: Family Presence during Trauma Resuscitation: A Survey of AAST and ENA Members. J Trauma 48(6):1015-1024, 2000.

October Newsletter Released!

The October newsletter is now available! Click the link below to download. This month’s topic is “Imaging”, with a focus on repeat imaging.

In this issue you’ll find articles on:

  • Radiation dosing from common studies – how much does your patient actually get?
  • Repeat imaging: how often? And how effective is it?
  • Basics on cloud radiology services
  • How effective are cloud services?

Subscribers received the newsletter last weekend. If you want to subscribe to get early delivery in the future (and download back issues), click here.

Click here to download newsletter.

10 Things That Will Get You Sued – Part 3

#7.
Inappropriate prescribing

Most trauma professionals worry about over-prescribing
pain medication. But under-prescribing can create problems as well.
Uncontrolled pain is a huge patient dissatisfier, and can lead to unwelcome
complications as well (think pneumonia after rib fractures). Always do the math
and make sure you are sending the right drug in the right amount home with your
patient. If the patient’s needs are outside the usual range, work with their primary
provider or a pain clinic to help optimize their care.

#8. Improper
care during an emergency

This situation can occur in the emergency
department when the emergency physician calls a specialist to assist with
management. If the specialist insists on the emergency physician providing care
because they do not want to come to the hospital, the specialist opens themselves up to major problems if any actual or perceived problem occurs
afterwards
. The emergency physician should be sure to convey their concerns
very clearly, tell the specialist that the conversation will be documented
carefully, and then do so. Specialists, make sure you understand the emergency
physician’s concerns and clearly explain why you think you don’t need to see
the patient in person. And if there is any doubt, always go see the patient.

#9.
Failure to get informed consent

In emergency situations, this is generally not
an issue. Attempts should be made to communicate with the patient or their
surrogate to explain what needs to happen. However, life or limb saving
procedures must not be delayed if informed consent cannot be obtained. Be sure
to fill out a consent as soon as practical, and document any attempts that were
made to obtain it. In urgent or elective situations, always discuss the
procedure completely, and provide realistic information on expected outcomes
and possible complications. Make sure all is documented well on the consent or
in the EHR. And realize that if you utilize your surrogates to get the consent
(midlevel providers, residents), you are increasing the likelihood that some of
the information has not been conveyed as you would like.

#10.
Letting noncompliant patients take charge
 

Some patients are noncompliant by nature, some are
noncompliant because they are not competent (intoxicated, head injured). You
must use your judgment to discern the difference between the two. Always try to
act in the best interest of your patient. Document your decisions thoroughly,
and don’t hesitate to involve your legal / psych / social work teams.