Liability Concerns

Many emergency physicians hesitate to evaluate patients from the ED waiting room because of liability concerns. Once a patient presents to the ED for evaluation, they are covered under EMTALA. The EMTALA law gives every patient the right to a medical screening exam in the ED and treatment until their emergent medical condition is stabilized.⁵

Does treating a patient in the waiting room establish liability for the patient? The answer is unclear. Perhaps a better way to frame the question is to consider if harm is being done to the patient. It may be that leaving patients unattended in the waiting room for prolonged periods of time may be more harmful than trying to treat with what little room and resources are available.

Solutions

Responses to the challenge of prolonged ED wait times and waiting room crowding center around reimagining the traditional ED workflow to deliver evaluations and treatments to patients asynchronously while they wait. A 2020 scoping review reported 38 interventions to improve patient care.⁶ Common strategies include employing a nursing-driven standardized triage order sets or utilizing a physician-in-triage. Other interventions have included expanded point-of-care testing, frequent vitals, ED observation units, computerized clinical support systems, and activation of additional services such as scribes, mental health providers, and pharmacists.

These nontraditional care models all center around the reality that the alternative to the ED flexing its workflow is to provide no care to the waiting patients in a gridlock. Although such nontraditional care models may be scrutinized as they represent a deviation from the standard of care, it is a fallacy to reject these interventions, outright. Nontraditional care models may represent the “lesser of two evils” and the best standard of care within the context of crowded circumstances.

Call to Action

The nation’s EDs have continued to bend under the strain of waiting room crowding, principally a result of inpatient boarding in the ED, without any identifiable regulatory, financial, or altruistic motivations making a meaningful impact in this trajectory. For this reason, ACEP called for, and is participating in, a summit on ED boarding with the Centers for Medicare and Medicaid Services to seek pathways forward addressing the root of ED crowding. Although it is the ethical obligation of emergency physicians at the bedside to respond to the individual patient’s needs seeking their best outcome and best interest, the swelling landscape of crowded ED waiting rooms and delayed ED care cannot be resolved at the bedside but at the federal level.