Risk Increasing for Lawsuits Involving Delayed ED Diagnoses

Specify reasons for delays

Errors related to missed or delayed diagnoses are a frequent cause of patient injury and, as such, are an underlying cause of patient-safety-related events, according to new research from the Harrisburg-based Pennsylvania Patient Safety Authority,1 which reviewed 100 events related to diagnostic errors between June 2004 and November 2009, 23 of which originated in the ED.

According to Cynthia Lacker, RN, MS, LNCC, CPHRM, the study's author and a patient safety analyst at Plymouth Meeting, PA-based Pennsylvania Patient Safety Authority, medication errors probably receive a disproportionate amount of media attention because they are relatively easy to detect, and can sometimes result in catastrophic patient harm.

"However, if you look at medical malpractice claims data, you will see that a high percentage of claims are related to diagnostic error," says Lacker. "This is reflective of the fact that diagnostic error often results in catastrophic injury, too."

Detection is the biggest problem with diagnostic errors, says Lacker, and there isn't always agreement on when a diagnostic error has occurred. "Diagnostic errors also encompass a broad array of cognitive and systems factors, including education, training, setting-of-care, and disease-specific issues," she adds.

Commonly missed diagnoses in the ED include fractures, infections, myocardial infarction, cancer, and cerebral vascular disease, says Lacker. "System issues that are problematic include ordering, receiving, and interpreting tests, thorough history and physical, and appropriate consultations," she says.

Risks Rising for Acute Diseases

There are "huge numbers" of cases in recent years involving claims of delays in diagnosis that the plaintiff's lawyer alleges would have made a difference in the patient's outcome, according to Matthew Rice, MD, JD, FACEP, former senior vice president and chief medical officer at Northwest Emergency Physicians of TEAMHealth in Federal Way, WA.

"A classic one in the ED is a patient comes in with a cough, a chest X-ray is taken, and a nodule or abnormality is missed," says Rice. "Six months later, it's diagnosed as a tumor."

At the time of the ED visit, says Rice, the nodule may not have been picked up by the radiologist, or was picked up by the radiologist but without good feedback to the patient by the emergency physician (EP). Either way, he says, the end result is a delay in diagnosis.

Another scenario could involve a delay in diagnosis of an infectious disease process, says Rice, which allows the patient to become more ill or other people to become infected.

Delay in diagnosis is an issue that's pertinent only if it makes a difference, relative to that diagnosis, notes Rice. If a patient has a certain symptom and it is diagnosed incorrectly, and there is a difference in outcome when it is later diagnosed, then it becomes more of a risk for the EP, he says.

Rice says that he doesn't think risks of delayed diagnosis are increasing with chronic diseases. "They may actually be improving, due to risk-management procedures," he says. If an ED physician misses a radiographic or laboratory abnormality, a good-quality assurance process should assist in picking up the abnormality, he explains.

Rice says he does see increased legal risks for EPs involving acute diseases, however, "where time is of the essence. The cardiovascular diseases are the chief ones, whether strokes, aneurysms, or heart attacks."

The longer you wait before you treat the problem, says Rice, the more impairment the person has after he or she recovers. "A delay in diagnosing a stroke means more dead brain tissue and more disability," says Rice. "Time issues become imperative for the EP."

Chart Reason for Delays

Was a heart-attack patient not given thrombolytics at your facility because he or she was 20 minutes from a facility with a cardiac catheterization lab? Rice says in a case like this, it's important to document the reasons for delays that occur between the time of diagnosis and the time treatment is actually implemented.

"This is critical," he says. "There may be an appropriate antibiotic available, but the patient is allergic to it, and there is a delay in getting a different antibiotic." Document this clearly, he says, so it doesn't later appear as though there was an inexplicable delay in treatment.

If you are unable to obtain a CT scan because of a patient's weight, says Rice, document the reason why. "If a patient weighs 400 pounds, you may have to transfer them to another facility," he says. In this case, Rice recommends charting, "In evaluating the patient and trying to make a diagnosis, I am not able to obtain a CT scan, which is important, so I have to transfer the patient elsewhere to get the CT scan." Also, include any mitigating factors, says Rice, such as treatment that occurred while the patient was waiting for the CT scan.

If an ED patient sues for delayed diagnosis, Rice says the claim is likely to be multifaceted. "One claim would be a failure to evaluate, diagnose, and treat," he says. "If the person is waiting, they probably didn't get evaluated at all, so there are potential [Emergency and Medical Treatment and Labor Act] issues there."

Rice points to a nationally publicized case of a septic child who came to an ED and died while waiting to be seen. "Those kind of cases have always existed, but I think they have increased in frequency over the past ten years," says Rice. Crowding is the main reason for this, he adds.

"As long as you have hospitals with particularly crowded EDs, you will see a continuation in litigation because of the failure to assess, diagnose, and treat patients," says Rice. To reduce these risks in crowded EDs, Rice recommends restructuring triage and adding extra personnel.

If the ED is particularly crowded on a given day, Rice says it's best to keep this information out of the patient's chart. "Documenting that may make ED staff feel better," he says. "But if you look at it purely legally, I think that can be used as much against you as much as it may help you."

Unless a serious mass-casualty situation occurs, says Rice, a jury will expect an EP to respond to unexpected surges in volume by adding more personnel or other resources.

"You want to try to defend yourself, and not the process," says Rice. "It's not good to say, 'I was too busy trying to take care of trauma patients to take care of a sick child.'"

If you try to pin the blame on the hospital's failure to supply appropriate resources, Rice says that the hospital could then turn around and accuse the ED physician group of not putting enough doctors in the ED. "My advice is not to cite specific circumstances, unless they are really unusual," says Rice. "Otherwise, it looks like you are trying to rationalize what turns out to be a bad outcome."


1. Lacker C. Diagnostic error in acute care. Pa Patient Saf Advis 2010;7(3):76-86. 


For more information, contact:

• Cynthia Lacker, RN, MS, LNCC, CPHRM, Pennsylvania Patient Safety Authority, Plymouth Meeting, PA. Phone: (610) 825-6000 ext. 5040. Fax: (610) 567-1114. E-mail: clacker@ecri.org.

• Matthew Rice, MD, JD, FACEP, Gig Harbor, WA. Phone: (206) 790-5371. Fax: (253) 853-5617. E-mail: mricemd@gmail.com.