An EP believed a patient’s fever had resolved after administering an antipyretic, but when the nurse rechecked the vitals prior to discharge, the temperature still was elevated. However, “the nurse never reported this finding to the EP,” says Julye Johns, JD, an attorney at Huff, Powell & Bailey in Atlanta.

The patient was discharged and went into cardiac arrest and died at home within one hour.

“The fever may have been unrelated to the death,” Johns says. In the ensuing malpractice litigation, the plaintiff attorney alleged that if the EP had kept the patient at the ED to address the fever, the patient either would not have arrested or would have arrested in the ED, potentially saving her life.

In malpractice cases alleging an ED patient was improperly discharged, “the primary allegation is the lack of stability of the patient at discharge,” Johns explains. She typically sees these fact patterns:

  • no change or worsening of the patient’s pain level or vital signs;
  • a lack of reassessment by the EP before discharge;
  • a lack of communication between the nurse and EP regarding the patient’s final assessment before discharge.

“Communication and documentation can be key in warding off such claims,” Johns says. Here are some common allegations in lawsuits that claim that the ED patient was discharged improperly.

  • The EP failed to order and perform appropriate tests, such as a CT scan or repeat troponins.

“If someone develops their medical decision-making narrative, and explains why they did or did not perform a test, they should be in good shape,” says Karen Santucci, MD, section chief and medical director of the ED at Yale-New Haven (CT) Children’s Hospital.

  • The EP failed to consider the eventual diagnosis.

Say a child presents with abdominal pain and vomiting. “Appendicitis might be in your differential, and it will be important to document what the patient doesn’t have,” Santucci says.

For example, the EP can document the absence of right lower quadrant pain, rebound, or guarding, and that the patient is tolerating food or liquid by mouth.

  • Abnormal vital signs went unaddressed.

Is the EP discharging a patient with abnormal vital signs? If so, Jill M. Steinberg, JD, says “he or she should make a note indicating awareness of the abnormal vital signs, and the reasoning for discharging the patient.”

Santucci gives the example of a child presenting with fever. One possibility is a serious bacterial infection.

“But this is far less likely if the child is relatively well-appearing, has been appropriately immunized, is interactive, and tolerating food and drink by mouth,” she says.

Santucci says the ED chart should reflect vital sign trends. This can show that the patient’s elevated heart rate decreased with fluids or pain control.

“The vital signs may not be perfect at the time of discharge. But if they are trending in the right direction, that is helpful,” Santucci adds.

Johns often sees ED charts with absolutely no explanation for why a patient’s abnormal vital signs went unaddressed. Documentation that the patient’s baseline blood pressures are slightly elevated due to pre-existing hypertension could be very helpful to the EP’s defense.

“In short, if the vitals were concerning at the start of the admission, the EP needs to justify why it is OK, and, therefore, within the standard of care, to send a patient home,” Johns advises.

  • The patient wasn’t informed as to when to return to the ED.

“Careful and clear discharge instructions are really important,” Santucci cautions. Several years ago, a special needs child presented to the Yale-New Haven ED with vomiting, but was unable to communicate whether he was experiencing abdominal pain. “Serial belly exams were documented in the ED,” Santucci recalls, noting these indicated that the abdomen was “soft and non-tender.” The child returned five days later with a perforated appendix. The ED chart stated that the family was instructed to return to the ED if vomiting, anorexia, fever, or abdominal pain occurred.

“He had all of these, but was not brought back until five days later,” Santucci says.


  • Julye Johns, JD, Huff, Powell & Bailey, Atlanta. Phone: (404) 892-4022. Fax: (404) 892-4033. Email:
  • Karen Santucci, MD, Section Chief/Medical Director, Children’s ED, Yale-New Haven (CT) Children’s Hospital. Phone: (203) 737-7435. Fax: (203) 737-7447. Email:
  • Jill M. Steinberg, JD, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, Memphis, TN. Phone: (901) 577-2234. Fax: (901) 577-0776. Email: