Viewpoint: Facing Malpractice Suit? Sue the CEO and Board : Emergency Medicine News

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Facing Malpractice Suit? Sue the CEO and Board

Derlet, Robert W. MD; Borden, Mark MD

Emergency Medicine News 45(3):p 5-6, March 2023. | DOI: 10.1097/01.EEM.0000922724.06758.46

    Hospital boards and CEOs are guilty of negligence by prioritizing profits over patients

    malpractice, CEO, hospital, board, negligence, emergency medicine, EP, NPP

    A plaintiff's attorney recently asked me (RWD) to review the case of a young man whose appendix ruptured while he laid vomiting on the floor of an ED waiting room for 12 hours.

    “Which physician do I sue?” he asked.

    “No physician,” I replied. “You should sue the hospital chief executive officer, and light the fire under that CEO's feet on the witness stand.”

    That ED was severely understaffed, physicians were hours behind, and nurses were overextended. One nurse was even caring for a dozen sick patients in a noisy hallway. The hospital had throttled admissions so the hospital CEO could save money by closing inpatient units.

    Meanwhile, the hospital profited by continuing to admit elective patients. Contrast that with ED patients waiting to be transferred to an inpatient bed, lying on gurneys in hallways, thirsty, hungry, and forced to urinate in a urinal or bedpan in front of others.

    Too many hospital CEOs and their administrative minions are lost in space or just don't care when it comes to understanding the workings of an ED. Some do not want to understand. I once asked an administrator how often he comes to the ED to talk to the staff. “I avoid that place at all costs,” he replied. “I might get some terrible disease or be spit on by one of your psycho patients.”


    Many hospital problems go far beyond mismanagement and ineptitude. Some are due to downright negligence, like these:

    Perpetuating Hallway Care: A recent article described poor outcomes associated with ED hallway care such as intravenous lines running dry, medications infused incorrectly, patients becoming hypotensive and then being found pulseless, golden-hour antibiotics delayed by hours, and oxygen tanks running empty because of the fragmented nature of hallway nursing care. (J Emerg Med. 2022;63[4]:565; Patients with severe asthma deplete their nebulizers, and, gasping for air, try to flag down passing staff who are too busy to help. Patients in pain may not receive analgesics that were ordered, while other patients vomit into a dehydrated state.

    Placing patients in ED hallways for ongoing care and monitoring is avoidable. Multiple solutions have been published in the literature, including moving all admitted patients immediately to inpatient beds, which was championed by EPs in New York. (Ann Emerg Med. 2009;54[4]:487; Unfortunately, too many administrators favor keeping congestion confined to the ED.

    Short-Staffing the ED: CEOs allow staff shortages to persist shift after shift in their EDs. When one link of the chain is missing, everyone becomes stressed, and patients suffer. It need not happen. Additional nurses can be brought in from other units or temporary services. Contract management groups, which provide EPs in most EDs, can supply adequate numbers of EPs, and other personnel can be hired. But these solutions cost money and may eat into the hospital's profit and CEO's bonus.

    Prioritizing Data Over Patients: The CEO's focus is often to treat the computer, not the patient. Metrics matter most to CEOs, not compassionate bedside care, and good metrics mean good bonuses for administrators. Time-to-physician-presence can be gamed with a 15-second greeting, with the physician not returning until later for a complete H&P. Does that benefit the patient? Too many hospital administrators are proud to flash their shiny MBA credentials and attempt to lord over emergency medicine by demanding physicians and nurses meet goals measured by computer-generated metrics.

    Replacing EPs with NPPs: Too many hospitals now allow nurse practitioners and physicians assistants to replace EPs because it is cheaper than hiring another board-certified EP. But nonphysician providers are more likely to make critical errors and put the supervising EP at risk for malpractice even though he may not have examined the patient.

    Recently, Jonathan Jones, MD, the president of the American Academy of Emergency Medicine wrote that he had been fired by a CMG, presumably to replace him with less expensive nonphysician providers. (Common Sense. July-August 2022;

    Muzzling the Front Line: Too many physicians feel muzzled about patient safety issues by fear of being fired by the CMG. (J Emerg Med. 2022;62[5]:675; An EP who stands up for patients by arguing with a CMG or CEO is likely to be labeled a troublemaker, which may prevent employment by other CMGs. An EP who has a problem with a large CMG cannot simply get a job at another ED. Chances are the CMG has a contract with all the other hospital EDs in town, especially if they are owned by the same corporation. It is bad news for patients when physicians are unable to advocate for their patients.

    Poor Judgment by Boards: The board of a hospital where I (MB) recently worked hired a CEO who had no business training, no management experience, and—incredibly—no college degree. That CEO made decisions that were blatantly harmful to the quality of patient care.

    He also asked me to increase my hours from 120 to 170 a month, stating that EPs should work a 40-hour week like he did. I explained that the combination of 12-hour night shifts and 12-hour day shifts must be considered, so he then attempted to eliminate our call room.

    I did my best to correct his errors as the ED medical director, but it was a difficult battle. The CEO's background was in computer programming. He replaced our ED-dedicated electronic medical record with a hospital EMR that had a free module for the emergency department.

    We are still forced to enter a last menstrual period for all patients whether male, female, or pediatric. That may sound trivial, but it was actually difficult because the computer would refuse many dates that we tried to enter, and it refused to allow any orders to be placed until it was satisfied.


    What are we to do? These problems might seem hopeless, but we can take steps that can move us in the right direction.

    Hippocratic Oath for Administrators: The hospital would be a healthier environment for patients if administrators joined physicians in placing patients first. I (MB) wrote about the Hippocratic Oath for Administrators in the past. (EMN. 2019;41[9]4: Business and medicine practice have historically been separate, but the advent of physician servants has made the CEO the ultimate decision-maker about patient care, and therefore that is who should be held responsible for decisions that affect its quality.

    The CEO who chooses a bargain EMR resulting in poor outcomes or who replaces physicians with providers who have only 10 percent of a physician's education and less than 10 percent of a physician's training must be held accountable, as should the hospital board. Some potential hospital CEOs will no doubt refuse to sign the oath, and they should not be hired by a hospital or medical practice.

    Allow EP Complaints: We encourage fellow EPs to describe defective support of EDs by hospitals and CMGs to the media and their unions and to write to their legislators and share on social media. EPs also need to raise the issue with their professional organizations and local and state medical societies. The board that chooses a poor performing or unqualified CEO is responsible, and the American public needs to hear about it.

    Legal Action by EPs: Hospital CEOs may find that previously loyal EPs and nurses may testify against them. An EP recently sued for malpractice was accused of making a wrong disposition because he had missed critical data that was buried in a complex and difficult-to-use EMR. He said at deposition that the EMR was difficult to use and confusing, increased medical errors, and took away valuable bedside time. He also testified about staff shortages and the lack of resources given to the ED, and this resulted in the hospital settling out of court. We advise EPs named in a lawsuit as a result of their hospital's gross negligence in providing the ED with resources to sue the CEO.

    The Difficult Dance

    Medicine has always been a difficult dance between the physician and hospital finances. It is our deepest responsibility as physicians to advocate for our patients. We must raise the roof if a patient is in a hallway bed and experiencing decreased quality of care.

    Changes motivated by profit rather than quality of care must be examined critically, and we must not be afraid to denounce those decisions. Our professional societies must ensure that a physician can speak out on behalf of patients without suffering.

    A hospital administrator and the board are still responsible even if they don't take the Hippocratic Oath. Our attitude as physicians must be that anyone who chooses to work in a hospital has tacitly assumed the responsibility to prioritize patient welfare.

    Lawmakers reading this should realize that even a faint whisper from a physician should be interpreted as a roar. It takes great courage for a physician to speak up for a patient. We need help and support from those who make laws to protect patients.

    Dr. Derletis a professor and the chief emeritus in emergency medicine at the University of California, Davis. He founded the EM residency training program there, and is the author of the book Corporatizing American Healthcare; How We Lost our Healthcare System. Dr. Bordenis an emergency physician in Washington State and the author of the book Medical Wisdom.

    Copyright © 2023 Wolters Kluwer Health, Inc. All rights reserved.
    • frankpeacock10:19:01 AMEven if you're not crowded, providing inferior tests (e.g., an insensitive troponin test, instead of a highly sensitive assay) gives the EP the risk of discharging patients who then suffer subsequent adverse events and file lawsuits because the EP didn't have guideline-compliant decision-making tools. The CEO/board should share the risks of crappy ED decision-making tools.
    • jeremy10:07:50 AMYou can’t sit here and throw rocks at all of the hypocrisy and problems when you yourself are in contact with plaintiff attorneys trying to (most likely) unjustly sue a fellow EP. Want to see the problem? It’s you, yes, you’re the problem; it’s you.
    • werner.irene9:57:29 AMIf the physician and the hospital have the same malpractice insurance company, I think it unlikely that the company would third party the hospital to defend the physician. Also, the hospital would probably be named in the original suit as well as the physician.
    • scordovano1:08:53 PMNice article. Medmalinsights, I'd like to apply for a job at your shop!
    • medmalinsights8:09:32 PMA well-written case for finding a career (not a job) at a nonprofit community hospital with an independent, non-CMG group of docs. I was blessed to have a 40-year career at a newly built hospital that started with 72 beds and a five-bed ER staffed by five to six docs. It's now a ~280-bed hospital that has ranked in the Healthgrades "Top 50" for three years in a row. Our CEO is a physician who spent his career here. The ED group consists of 50+ ED providers (yes, PAs too) staffing a 32-bed ED and a freestanding 24-hour ED. Three of our docs have been med staff presidents. It doesn't need to be all doom and gloom if you make the right career (not job) choice up front.