For a medical malpractice claim to exist, an adverse outcome must have occurred, and there must be an unsatisfied patient or family.

Sean P. Byrne, JD, a medical malpractice defense attorney in the Glen Allen, VA, office of Hancock, Daniel, Johnson & Nagle, helps healthcare providers, including EPs, prevent future litigation with proactive risk management.

“In my experience defending medical negligence cases, the patient’s view of their relationship with the providers in the ED can significantly impact how they process an adverse outcome and whether they elect to pursue litigation,” Byrne says. Here are some factors he has seen in ED malpractice litigation:

  • The patient returned to the ED with a new or worsened condition that was not appreciated or recognized on initial presentation.

“Thus, the question is often whether it was a ‘reasonable miss,’” Byrne says.

If patients think ED providers were rushed, inattentive, or disregarded their symptoms and complaints, they’re much more likely to second guess the care and explore legal remedies.

  • Patients didn’t fully understand what occurred during the ED visit.

“Patient dissatisfaction after ED visits seems to be driven, at times, by not fully understanding their diagnosis and treatment plan,” Byrne notes.

It often becomes apparent during litigation that patients can’t identify various members of the ED team and didn’t understand the respective roles team members played.

“Patients value introductions, explanations about the reason for tests, and updates during each phase of their care,” Byrne says. This requires a combined effort by EPs, mid-level providers, ED nurses, and ED technicians.

  • Patients didn’t realize there was some degree of uncertainty associated with their diagnosis, and that there were critical things to watch for and respond to if their condition changed.

“Very commonly, the patient reports very little, if any, recollection of what they were told at discharge,” Byrne says.

Byrne has found that detailed notes in the ED chart, along with written discharge instructions printed and given to the patient, often proves to be helpful evidence in the EP’s defense.

  • The patient or family says something to the effect of, “If only the EP had listened to what we were telling him/her.”

One ED case alleged that the EP failed to appreciate and respond appropriately to an ileus/bowel obstruction. Prior to receiving a nasogastric tube, the patient vomited, presumably aspirated, coded, and died.

“During the litigation, the family expressed that the providers were not attentive to their comments about the patient’s distended abdomen, and ignored their concerns,” Byrne says.

Risk-reduction Strategies

Byrne commonly hears from patients and family during depositions in ED cases that they perceived their interaction with the EP or mid-level provider as “brief and superficial.”

“At times, they will allege that the provider was inattentive, dismissive, or even rude,” he adds.

Since EPs don’t have long-term relationships with patients, says Byrne, “that makes it even more important that the communication that does happen in the ED is thoughtful, comprehensive, and compassionate.” He suggests that EPs utilize these risk-reducing practices:

  • Practicing “the basics” of good communication. This includes making eye contact, acknowledging each person in the room, apologizing for delays, and demonstrating a willingness to listen.
  • Learning how to communicate with dissatisfied patients and address their concerns constructively. “This is a skill that requires education, training, and experience, just like clinical skills,” Byrne says.

Byrne has seen multiple cases in which ED patients expressed dissatisfaction with the care they received and asked to speak with the EP. EPs typically are reluctant to engage in these conversations.

“This is because of the discomfort associated with it,” Byrne says. “There is also a fear of litigation, of what you say being used against you in a court of law.”

  • Using an “ask-tell-ask” approach. “This ensures effective ‘closed-loop’ communication,” Byrne says. The EP asks patients open-ended questions and assesses their existing knowledge before sharing information.

“When patients feel as though they were heard and understood, they have more ownership over the healthcare delivery process,” Byrne says. “They are less inclined to place blame when the outcome is undesired.”


  • Sean P. Byrne, JD, Hancock, Daniel, Johnson & Nagle, Glen Allen, VA. Phone: (804) 237-7409. Email: