After an emergency physician (EP) determined the preliminary X-rays of a patient with an injured wrist were negative, the EP sent the patient home with a splint, instructions to follow up if pain and/or swelling persisted, and pain medication. Later, a radiologist also interpreted the X-rays as negative.

The patient returned to the ED several days later because of continued pain. A repeat X-ray revealed a navicular fracture, and the patient was referred to the orthopedic clinic.

Several months later, the patient filed a claim against the EP alleging delay in diagnosis and treatment of his wrist fracture, resulting in nonunion that required bone grafting surgery.

“The patient complained during both visits to the ED that the EP was unconcerned, rude, minimized his pain, and was not worried about the wrist injury,” says Kathleen Shostek, RN, ARM, CPHRM, vice president in the healthcare risk management and patient safety division of Sedgwick, a Memphis-based third party administrator for professional liability claims.

Shostek says the second ED visit was a “lost opportunity” for the EP to intervene, listen to the patient’s concerns, and offer an apology. The EP also could have taken the time to explain to the patient that navicular fractures are not always observed on an initial X-ray.

“This may have prevented the patient from filing his claim,” Shostek says, noting malpractice suits rarely are filed solely because the EP was uncaring, rude, or rushed.

“But when the patient experiences an error or delay that results in an injury or some sort of harm and had a poor personal encounter with the EP, that can tip the scale in favor of filing a liability claim,” Shostek adds.

Learn Concerns Within 72 Hours

If a bad outcome occurs due to a clear breach of standard of care in the ED, a successful malpractice lawsuit is fairly likely.

“Typically, you can’t prevent or mitigate an actual lawsuit in those situations. They’re going to sue regardless,” says Terrence W. Brown, MD, JD, FACEP, chairman of the ED at Banner Estrella Medical Center and counsel to Emergency Professional Services, both in Phoenix.

Other malpractice lawsuits, however, are less likely.

Banner Estrella’s ED admits 15-20% of the 90,000 patients seen in the ED annually.

“Out of that large number that go home, there’s going to be patients that feel they didn’t get the right care or a mistake was made,” Brown says.

Waiting until the patient formally complains to hospital administrators is a poor approach. By then, too much time has passed.

“That gives the patient and family time to stew and get more upset,” Brown explains. “What seems to help is if someone can identify an issue soon after the ED discharge.”

A follow-up call, made within 72 hours, gives patients a chance to vent before they end up calling an attorney.

“Not having the chance to voice concerns seems to be the biggest thing that drives the threat to sue,” Brown says.

Very rarely does an EP find out that a mistake was actually made. More often, simple misunderstandings on the part of the patient are corrected. For example, patients don’t always realize that it sometimes takes time for a diagnosis to become clear. It’s also important to note that not all discharged ED patients are called.

“It’s just not practical for EPs to be chasing down everyone that they’ve seen. So we try to target it to specific groups,” Brown notes.

This includes patients with vague presentations who were discharged with the same diagnosis with which they presented.

“They may say, ‘I came in with chest pain and was diagnosed with chest pain. What’s going on?’ Or a family member says, ‘They didn’t do anything for you,’” Brown says. Some patients are happy just to be going home after hours in the ED but later become distressed at the unclear diagnosis.

The phone call does two things: It conveys that the EP cares how the patient is doing, and gives the opportunity for the patient to share concerns.

“We tell them, ‘We really do mean it that we want you to come back if you feel something was missed,’” Brown says.

This prevents the scenario of a patient in the early stages of an evolving illness, such as appendicitis, going to another ED days later and receiving a diagnosis there. In that scenario, patients are likely to blame the first ED for not delivering the correct diagnosis. A follow-up call encouraging patients to come back can prevent this.

“It’s more likely that they will come back to your ED, and that they didn’t have to go somewhere else to get the correct care, in their mind,” Brown says.

The vast majority of patients don’t have any concerns at all about their ED care.

“Almost all of them are just grateful for the call,” Brown says.

In about one out of 20 calls, the patient expresses an unresolved concern. Usually, this involves a minor question that’s easily answered.

“It’s rare that something turns up,” Brown notes. “But if you multiply those by all the patients who come in, it does catch a pretty decent number of patients who are sort of simmering and wondering what to do next.”

For example, one patient asked if the EP wanted to end a previous antibiotic course before beginning a newly prescribed one.

“This prevents those month-later complaints where a patient will say, ‘My primary care physician says I never should have been taking that medication in the first place,’” Brown explains.

If the patient is extremely upset or angry, the EP involves the medical director or ED chair.

“Most of the time, if you can address it within three days of the visit, the patient doesn’t have time to research online for an attorney or talk to their family who thinks they should call an attorney,” Brown says.

If there truly is a concern that the standard of care wasn’t met, or a patient mentions they’ve been in touch with an attorney, the EP involves the hospital’s risk management department and its malpractice insurance carrier.

“It’s best to have them on board to guide you through the next step,” Brown recommends. “You don’t want to inadvertently acknowledge a breach in the standard of care, and now you’re a witness.”

Address Concerns in ED

Several years ago, Banner Estrella Medical Center’s ED piloted a program to identify patient concerns before patients left the ED, reducing the number of formal complaints by 87%.1

A designated individual asked every ED patient about to be discharged if they had any unresolved concerns. If the patient said yes, the EP went back to the patient and resolved the concern.

Some patients admitted they weren’t comfortable going home, or had noticed an abnormal finding in their lab work that the EP hadn’t mentioned.

“After the EP tells them, ‘We’re going to send you home,’ we gave them 10 minutes to think about it,” Brown recalls. “It gave us a second chance to correct misconceptions.”

It worked very well for a designated person to visit every patient about to be discharged, instead of a clinician doing so, since not many had concerns. Of 5,969 ED patients surveyed over a one-year period, 348 expressed a concern about their care. The real-time survey allowed EPs to visit only the small number of patients with concerns.

However, the project was time-intensive and costly, so the hospital discontinued it.

“But it really did reduce a lot of those angry encounters a few days later,” Brown adds. “Ideally, you want to catch them before they leave. If you can do that somehow, you are saving tons of time.”

One patient was confused as to why the EP prescribed a certain antibiotic even though the patient presented with a penicillin allergy. This gave the EP the chance to explain that the antibiotic was in a different class of medication. If the EP hadn’t explained this at the point of discharge, the patient might have decided not to take the medication, risking a poor outcome.

Another approach would be for ED nurses to take on this role, and ask if patients have any concerns before discharging them.

“But that takes a lot of culture change. It’s just not how we do things in the ER,” Brown says. “Once we know the patient is stable to be discharged, we are looking for the next crashing patient.”


  1. Lansburg JM, Anand N, Vasko R. Utilizing real-time patient satisfaction data to perform service recovery for dissatisfied who present to the emergency department. Ann Emerg Med 2012;60:S112.


  • Terrence W. Brown, MD, JD, FACEP, Chairman, Department of Emergency Medicine, Banner Estrella Medical Center, Phoenix. Phone: (602) 839-6968. Fax: (602) 839-4144. Email:
  • Kathleen Shostek, RN, ARM, CPHRM, Healthcare Risk Management and Patient Safety, Sedgwick, Chicago. Phone: (312) 521-9252. Email: