Special Report

Discharging from the ED: Did you give proper instructions?

By Stephanie Rifkinson-Mann, MD, JD, Neurosurgical Consultant, Mount Kisco, NY; Attorney, New York City.

It is the duty of a physician or other health care provider dealing with a case in the ED to give the patient or, in certain circumstances (where the patient's competence is in question), the patient's family, attendants or caregivers, all necessary and proper instructions as to the care and attention to be given to the patient and the cautions to be observed following discharge from the ED. Failure to do so is considered negligence, which will render the health care provider liable for any resulting injury. The duty of care is not limited merely to the diagnosis and treatment of a medical condition, but extends to instructions regarding post-treatment care. The manner in which these instructions are provided may be key to deciding whether or not one may be held liable for negligence.

In Crawford v. Earl K. Long Memorial Hospital, the plaintiff, Ella Bennett Crawford, sued for damages resulting from the alleged wrongful death of her son, William Sterling Ross.1

Mr. Ross, the decedent, was involved in an altercation during which he was hit on the head with a baseball bat and shot in the shoulder. He was taken by ambulance to Baton Rouge General Hospital, and then transferred to the ED at Earl K. Long Memorial Hospital. The ED physician examined Mr. Ross, and apparently noted no symptoms or signs indicating that he should be admitted for observation or further treatment beyond what he already had received in the ED. The ED physician asked the nursing staff to call Mr. Ross' family to pick him up since he was cleared for discharge, and Nurse Fran Valenti called the plaintiff to come take her son home. After getting Mr. Ross home, the plaintiff went to sleep. The following morning, the plaintiff went to check on her son and found him dead in his bedroom.

The plaintiff filed a lawsuit, alleging that Mr. Ross' death was caused by improper and inadequate diagnosis by the ED physician, and that inadequate treatment and no discharge instructions were provided in the ED. After a trial on the merits, judgment was rendered in favor of the defendants, dismissing plaintiff's suit, and the plaintiff appealed.

The appeals court focused on two issues: 1) whether or not it was an acceptable medical practice at the time to give head injury discharge instructions orally and/or in writing; and 2) whether such instructions actually were given in either form in this particular case. The court reviewed the testimony given in the trial case, noting that objective symptoms referable to head injury were not present at the time the ED physician examined Mr. Ross and that expert testimony indicated that it was appropriate to discharge Mr. Ross home under the supervision of a responsible caretaker. Discharge instructions at the time included waking the patient up at regular intervals over the course of several hours following discharge, questioning him to see if he was alert enough to understand and answer questions, and checking him to see if his pupils were the same size.

Expert testimony during the trial indicated that in 1975, the standard of care was to give discharge instructions to the patient's caretaker orally, rather than in writing. Testimony also indicated that while oral instructions might have been more effective than written instructions, at the time the case was first filed there was a growing trend to provide written discharge instructions; however, this was more as a protective measure to prevent liability.

The second question the court addressed was whether, in fact, discharge instructions were given to the plaintiff, either orally or in writing. The plaintiff alleged that no discharge instruction of any kind was provided. Testimony by the nurse who discharged the decedent to his mother's care indicated that while she specifically spoke to the plaintiff regarding her monitoring the decedent's condition following discharge, she did not recall if she gave the plaintiff written instructions as well. The trial court noted that both principals were so credible that the deciding factor was the insistence of the ED nurse in demanding that the plaintiff come to the hospital to pick her son up, especially since the plaintiff also acknowledged that the nurse was indeed insistent, although for a different reason. The court concluded that,

It is difficult ... to believe that in view of the emergency room's long standing custom of providing instruction to the relatives of the patients who had suffered head trauma that Ms. Valenti, an experienced nurse, would not have communicated the need for periodic regular awakenings and examinations of the patient. In the final analysis, the court finds that although plaintiff's counsel presented a well prepared case, the plaintiff failed to sustain the burden of proof incumbent upon her.2

The appeals court affirmed the lower court's decision, observing that the ED nurse's insistence that the plaintiff come to the hospital to pick her son up, rather than having the hospital send him home in a taxi as the plaintiff had requested originally, conformed with her contention that the sole reason to have the plaintiff pick her son up was so that the nurse could give her the head injury discharge instructions.

In Leblanc v. Northern Colfax County Hospital et al,3 Lawrence LeBlanc was evaluated by an ED triage nurse for abdominal pain associated with an injury sustained in a fight. She decided that he could be discharged and called the physician on duty, who agreed to see him during regular office hours (four hours later that morning) if his pain continued. However, Mr. LeBlanc did not seek medical attention as directed. He returned to the ED a week later and was hospitalized with acute peritonitis. He died the following day.

The decedent's personal representative, his wife, Evelyn Mastrantoni LeBlanc, filed a malpractice claim against the ED and the hospital. The defendants were Northern Colfax County Hospital and Dr. Floersheim, the ED physician. The trial court had held that while fact issues had been demonstrated as to the negligence of the doctor and the hospital, that negligence did not contribute to the decedent's death because he did not see the doctor as instructed. The trial court granted summary judgment to the defendants and the plaintiff appealed.

The appeals court disagreed with the trial court's holding and focused on the quality of the discharge instructions given the decedent.

The defendant physician testified that the instruction to see a doctor in the morning if the pain continued was adequate, and that it was hospital policy to provide more detailed information to patients only in cases of head injury or the need for a cast. The plaintiff's medical expert had testified that the ED staff should have recognized the risk to the patient and that failure to do so fell below the expected level of care. While the defendant argued that the proximate cause of the man's death was his failure to seek medical attention as instructed, the appeals court noted that "... Given the fact that LeBlanc received instructions consistent with the deficient assessment at the emergency room, a fact finder could find that a patient might delay seeking medical attention ... had the doctor or nurse given instructions which would have alerted a reasonable person to the dangers of not obtaining medical attention, the result here might have been different."4

In reversing a summary judgment for the defendants, the court held that a genuine issue of fact existed as to whether the failure to detect a potentially life-threatening situation and the failure to give advice that would apprise the patient of the seriousness of his condition constituted negligence. The case was remanded for a new trial on the merits.

Case law affirms that a doctor has an affirmative duty to provide clear health care instructions to a patient and that the patient must understand them. In Barnes v. Bovenmeyer,5 the court stated that "[i]t is the duty of a physician in charge of a case, to follow the case and to give proper instructions to the patient as to his future acts and conduct."6 The test for the existence of a doctor's legal duty of care invokes the question of foreseeability (whether an ordinary person in the defendant's position, knowing what the defendant knows or should know, would anticipate that a particular harm was likely to result) and public policy concerns (whether the defendant's negligent conduct should extend to the particular consequences the plaintiff suffered).7 It is not sufficient to find a defendant liable for negligence unless it can be shown that such negligence was the proximate cause of the injuries suffered by a plaintiff.8

Neither Crawford nor LeBlanc have yet to be overturned, and both continue to be cited in other cases and medical malpractice treatises.9 Although discharge instructions now largely are given in writing, it should be noted that the converse can occur: that is, that patients and/or their caretakers do not comprehend the written instructions given to them and still require verbal explanations of what they are to do and watch for after leaving the ED. Furthermore, when discharge instructions are given, the patient must be told not just what to do but why he/she must do so. If discharge instructions are not clearly explained, even if the patient and/or caregiver signs the hospital forms indicating their understanding, the ED and its staff still may be held liable for negligent follow-up medical care.


1. Crawford v. Earl K. Long Memorial Hosp., 431 So. 2d 40 (La. Ct. App. 1st Cir. 1983).

2. Id. at 41.

3. Le Blanc v. Northern Colfax County Hosp. et al., 100 N.M. 494, 672 P.2d 667 (NM 1983).

4. Id. at 670

5. Barnes v. Bovenmeyer, 255 Iowa 220, 122 N.W. 2d 312 (1963).

6. Barnes, at 227. See also Christy v. Saliterman, 288 Minn. 144, 167-68, 179 N.W. 2d 288 (1970) (holding that failure to give such instructions is negligence which will render the physician liable for resulting injuries); Vann v. Harden, 187 Va. 555, 565, 47 S.E.2d 314 (1948) (holding that the duty of care is not limited to diagnosis and treatment, but extends to instructions).

7. Murillo v. Seymour Ambulance Assn, Inc., 264 Conn. 474, 479, 823 A.2d 1202 (2003).

8. Monahan v. Weichert, 82 A.D.2d 102, 106, 442 N.Y.S.2d 295 (1981).

9. 1-8 Medical Malpractice at 8.05 (Crawford); 58 A.L.R.5th 613, sec. 13; 1-18 Harney on Medical Malpractice @ 18.1 (LeBlanc).