A triage nurse’s note stating that a patient had fever and hip pain in his prosthetic hip became a key area of focus during a recent malpractice trial. At deposition and at trial, the emergency physician (EP) claimed to have examined the hip, and found that the patient did not have increased pain with range of motion.

“The emergency physician did not document the exam. The patient turned out to have septicemia with bacteria in the urine,” says Ken Zafren, MD, FAAEM, FACEP, FAWM, EMS medical director for the state of Alaska and clinical professor in the Division of Emergency Medicine at Stanford (CA) University Medical Center.

The EP diagnosed pyelopnephritis due to bacteriuria, but never explained how this caused hip pain. The patient’s urine and blood cultures ultimately grew methicillin-resistant Staphylococcus aureus (MRSA). Two days after the emergency department (ED) visit, the patient was admitted to the hospital; a large purulent hip effusion was eventually discovered and drained. “By this time, the patient was in septic shock, and subsequently died from multi-organ system failure,” says Zafren. “The jury returned a defense verdict only by default. They really couldn’t agree.”

The nursing notes made it clear that the patient’s chief complaint was hip pain and fever. “It should have been a straightforward case of investigating the source of the fever, with the first priority being to see if the prosthetic hip was infected,” says Zafren. The patient was seen by a physician’s assistant who had already done an X-ray of the hip as a first step. The EP testified that he saw the patient, but the only thing he wrote in the chart was the ED diagnosis of pyelonephritis.

“He had great difficulty at trial trying to explain why he didn’t go after the hip. He claimed to have examined the hip,” says Zafren. “Without the nursing notes, as well as the PA’s notes, it wouldn’t have been clear to the jury why he should have looked at the hip as the source of fever.”

Nursing notes are often helpful to an EP defendant in a malpractice case, but as in the above case, these can also complicate the EP’s defense. “Addressing the nursing notes is especially important when nurses document a likely diagnosis,” says Zafren.

Here are some practices that can reduce legal risks involving ED nursing notes:

 If patients report conflicting symptoms to the nurse and physician, the EP should address this in his or her documentation.

“I often find that I get a different story from the patient than what the triage nurse notes say,” says Zafren. “When this happens, I add a short statement in my note.” If the nurse wrote “His pain started today,” but the patient tells Zafren otherwise, he charts, “Appreciate nursing note. However, the patient told me he has been having pain for a week.”

Laura Pimentel, MD, vice president/chief medical officer at Maryland Emergency Medicine Network in Baltimore, gives this example of how an EP could address conflicting reports of symptoms: “In contrast to the complaint of chest pain documented in the triage note, the patient denied chest pain to me.” This explains why the EP did not pursue a chest pain work up.

“If your assessment of the complaint differs from that of the triage nurse, address that as well,” advises Pimentel. For instance, the EP might chart, “Although an EKG and cardiac enzymes were ordered by the triage nurse, the patient’s chest pain is very characteristic of musculoskeletal pain. The HEART score is 0, and further workup for ACS is not indicated at this time.”

Pimentel is aware of a malpractice claim in which a triage nurse wrote “suicidal ideation” as part of the triage assessment of a patient with a history of schizophrenia.

“When the physician saw the patient, he did not see the triage note,” she says. “His assessment was that the patient’s presentation was consistent with chronic schizophrenia.” The EP didn’t address the discrepancy between his assessment and that of the triage nurse. “Unfortunately, the patient left the ED and jumped off an overpass to her death,” says Pimentel. During the quality assurance (QA) review, the failure of the treating physician to specifically address the triage nurse’s findings was highlighted as a quality concern and risk management failure.

“This can also be a problem when nurses at triage initiate standing orders, placing the patient on a diagnostic pathway different from the physician assessment of the complaint,” adds Pimentel.

It’s not uncommon for patients to forget to mention to the EP some of the details they remembered to tell the nurses earlier, or they may change their story altogether. “If a physician doesn’t read the nursing notes, they may miss valuable information in the history which would make a difference in their plan of treatment, or delay diagnosis,” warns Paula Mayer, RN, partner and vice president of MayerLNC, a Canadian-based firm of legal nurse consultants.

Mayer says the best systems of ED documentation have an interdisciplinary record to which all team members can contribute and track what is happening with the patient. “If the physician reads the nursing notes and is aware of the discrepancies in histories, they have an opportunity to follow up with the nurse and patient to see what information is accurate,” she says.

• EPs should encourage nurses not to discharge patients with abnormal vital signs or high pain scores without further consultation with the physician.

The EP should document why the patient is safe to go home, says Zafren. “There are cases in which the patient couldn’t walk and was discharged in a wheelchair, but the doctor was unaware,” he says. “Some of these cases have had tragic outcomes.”

Nursing documentation became a key issue in a malpractice case involving an ED patient with compartment syndrome due to contrast dye extravasation in the hand and wrist. The nursing notes indicated that the patient had a pain score of 10, even after treatment with parenteral opiates.

“The doctor’s discharge instructions indicated that he told the patient his pain would get better in a few hours,” says Zafren. Instead, the pain got worse at home. “The patient returned a few hours later and had to have an emergency fasciotomy with some loss of function in the hand,” says Zafren. “The jury found for the plaintiff.”1

Nursing documentation can be problematic for the EP when the pattern of documentation makes the EP appear to be poorly responsive to a change in condition or deterioration. Pimentel gives this example: “Blood pressure is 70/40. Dr. X notified. Patient passes a melanotic stool. Dr. X notified.” “If the nurse does not document that Dr. X evaluated the patient or Dr. X at bedside, this can be big problem,” Pimentel says.

• EPs should remember that EMR entries made by nurses are time-stamped.

“However, nurses may have to write their notes after they have completed another more urgent task,” says Zafren. A malpractice case involved a patient at a skilled nursing facility on warfarin, aspirin, and clopidogrel who fell, hitting his head. “The physician ordered neuro checks every 15 minutes,” says Zafren.

The nursing notes, all created at about midnight, indicated neurological checks were done exactly on the hour and at 15, 30, and 45 minutes for two hours. The patient developed a headache at about 6:30 PM. “This was noted in the nursing notes that were entered over five hours later,” says Zafren. “But unfortunately it was not part of the ‘neuro checks,’ and no action was taken at the time.”

About an hour later, the patient suffered a seizure. The physician ordered that the patient be transported to an ED. By the time the patient was intubated and had a CT scan, he had a large subdural hematoma that the neurosurgeon deemed nonoperable. “By midnight, when the nursing notes were written, the patient was already dead,” says Zafren.

This case settled, partly because the plaintiff’s expert called into question the credibility of a nurse doing neuro checks at the exact minutes they were due. “The larger questions involved failure to transfer the patient in the ED in a timely manner,” notes Zafren. The EP, who was not named in the lawsuit, tried to help his nursing home colleague by claiming at deposition that even if the patient had been transferred immediately after the head injury, the CT scan would not have been completed before the patient had developed an inoperable hematoma.

“The ED nursing notes, which were time-stamped and entered appropriately, contradicted the EP’s theoretical timeline,” says Zafren. The case settled on favorable terms to the plaintiffs.

“Had the emergency physician been named, he would likely have been dropped from the suit,” says Zafren. “But his efforts to cover for a colleague would likely have caused problems for his credibility.”

• EPs should be aware that some templates state “nursing notes reviewed and agreed unless otherwise specified.”

“I discourage physicians and residents from ever putting that in their notes. ‘Nursing notes reviewed’ is fine, but the phrase ‘and agreed’ is a whole different story,” says William J. Naber, MD, JD, CHC, associate professor in the Department of Emergency Medicine at University of Cincinnati. This is because if the nursing notes specify something that was potentially detrimental to the patient, the EP has already, in effect, agreed to whatever was charted.

“Never have a blanket statement agreeing with anything,” advises Naber. “If you didn’t counter the notes [and a malpractice suit occurs], then you have a difficult problem.”

 EPs should address any abnormal vital signs before the patient leaves the ED.

If the patient’s blood pressure was recorded as 240/140 with several normal readings shortly afterward, the EP can address the abnormal reading by indicating in the chart, “I think this is an incorrect reading.” “Otherwise, it seems like you just didn’t address it,” says Naber.

Plaintiff attorneys often focus on individual signs or symptoms that are consistent with a diagnosis made after the patient was discharged from the ED. “Perhaps a temperature spiked, test results became available, pain became more severe, or pain migrated, prior to discharge but after the physician’s assessment,” says Scott Martin, JD, senior counsel with Husch Blackwell in Kansas City, MO.

These may or may not have altered the diagnosis. “But months or years after the actual events, it can be difficult to know what was considered without a note,” he says. “This puts the physician and nursing staff in a potential conflict.”

In Martin’s experience, the diagnosis of appendicitis carries a relatively high risk of a malpractice lawsuit in the event of a rupture following an ED visit; most early signs and symptoms are subtle and could indicate numerous non-emergent conditions. “In one of our cases, the physician noted ‘right lower quadrant tenderness’ shortly before transferring the patient to another hospital,” says Martin. Much of the two-week malpractice trial focused on that symptom.

“We ultimately won the case,” says Martin. “But if that had been noted by a nurse and not been shared with the ED physician, I would anticipate a different result.”

Pimentel says that a particularly vulnerable period for the EP is when nurses document the patient’s condition or vital signs at discharge. “In my ED, we now require the attending physician to sign off on discharge vital signs before the patient leaves,” she says. “This was the result of a case in which a patient was discharged with a low blood pressure that was not communicated to the physician.”


Scott Martin, JD, Senior Counsel, Husch Blackwell, Kansas City, MO. Phone: (816) 283-4678. E-mail: Scott.Martin@huschblackwell.com.

William J. Naber, MD, JD, Associate Professor, Department of Emergency Medicine, University of Cincinnati. Phone: (513) 600-4749. E-mail: naberwj@ucmail.uc.edu.

Paula Mayer, RN, Partner/Vice President, MayerLNC, Saskatchewan, Canada. Phone: (306) 590-8980. E-mail: info@mayerlegalnurseconsulting.com.

Laura Pimentel, MD, Vice President/Chief Medical Officer, Maryland Emergency Medicine Network, Baltimore. Phone: (410) 328-8025. E-mail: lpimentel@umem.org.

 Ken Zafren, MD, FAAEM, FACEP, Clinical Professor, Division of Emergency Medicine, Stanford (CA) University Medical Center. Phone: (907) 346-2333. E-mail: kenzafren@gmail.com.