It is challenging for defense attorneys to argue that an ED plaintiff’s own actions — leaving against medical advice, failing to follow up, or giving an inaccurate history — contributed to a bad outcome. Some effective approaches:

  • Avoid the appearance of criticizing an injured patient.
  • Point out ways in which the patient contributed to the harm, without specifically pleading a contributory negligence defense.
  • Express compassion, but assert strongly that it was not the EP’s fault.

Did an ED patient’s own actions contribute to a bad outcome? It’s tricky for the defense to bring this up during malpractice litigation.

“It can appear as though the emergency physician is now criticizing the injured patient. This can be detrimental to a case tried before a jury,” explains Mallory B. Earley, JD, a risk resource advisor at ProAssurance in Birmingham, AL.

Sean P. Byrne, JD, a medical malpractice defense attorney in the Glen Allen, VA, office of Hancock, Daniel, Johnson & Nagle, agrees: “It’s always potentially dangerous to blame the ED patient. There is a power imbalance, and the jury sees that.” If a malpractice case against an EP has gone to trial, odds are that the patient suffered some type of catastrophic injury. “The jury will feel sympathy for them,” Byrne says.

Subtle Approach Is Best

Most states use a comparative fault system. This means that if the ED patient carries some degree of responsibility for the adverse outcome, recovery declines apportionately.

Byrne practices in one of the few states that adhere to a strict contributory negligence doctrine. “If the patient is at fault, they get zero recovery. That seems really harsh, so courts are very reluctant to authorize that defense,” Byrne says.

Further complicating the use of the defense: The patient has to be negligent at the same time the physician is, and has to be a proximate cause of their injury. This is rarely, if ever, the case. “Instead, a lot of times that notion is pursued as a mitigation of damages defense,” Byrne says.

Alabama also uses a contributory negligence doctrine. Earley explains that to use this defense, the EP faces the difficult task of proving that the patient had knowledge of a dangerous condition, appreciated that danger, and failed to care for his or her own safety.

Attorneys often use a subtler approach. The defense can point out the ED patient’s actions without specifically pleading a contributory negligence defense. “This allows the defense attorney to connect facts alluding to contributory negligence, but stop short of having the burden of proof,” Earley explains.

Defense attorneys can express compassion for the patient’s injury while asserting strongly that it was not the EP’s fault. “We raise it more subtly — not as a legal argument,” Byrne notes. “We want to avoid offending the jury by blaming the patient.” Byrne typically explains to juries that both the EP and the ED patient have responsibilities. Here are some scenarios the defense can use to mitigate the EP’s liability:

  • The patient didn’t provide a complete and accurate history.

“This happens occasionally with ED cases,” Byrne says. This can be significant in malpractice litigation, since the chief complaint, history, and symptoms form a critical part of the EP’s differential diagnosis.

Byrne tells juries that the EP relies on the patient to give good information. “The decision-making in the ED is only as good as the information it is based on,” he says. A patient’s failure to offer full and complete relevant information can mitigate the EP’s liability — but it’s hard to prove it without good documentation.

“Sometimes, the patient claims they did tell the EP certain things, and the EP just failed to document it,” Byrne offers. An ED chart that is sparse and incomplete hinders the defense’s ability to counter this allegation.

“Expressed pertinent negatives are better than charting by exception,” Byrne warns. In other words, it’s better if the EP documents “recent fall, no loss of consciousness” than simply “recent fall.” Otherwise, it leaves open the possibility that the EP was told the patient had lost consciousness but failed to include this important information in the ED chart. “If the EP says, ‘Trust me, if it’s not there in the chart then the patient didn’t tell me,’ the plaintiff attorney always flips it back,” Byrne adds.

  • The patient failed to follow up or return to the ED as instructed.

“With any delayed diagnosis claim, typically the longer the delay, the worse the harm alleged,” Byrne says. If the patient failed to obtain recommended outpatient evaluation, he explains, “some portion of that delay then becomes the fault of the patient.”

Clear documentation of discharge instructions can help the EP’s defense. Earley says, “If the patient were to not follow these documented instructions, this would be evidence of non-compliance and potentially contributory negligence.”

If the patient didn’t return to the ED as instructed, timing becomes important. Byrne explains, “If the patient testifies that their symptoms worsened, the defense pinpoints if there was a delay between the time they noticed the failure to improve and when they returned to the ED.”

Adrienne M. McFadden, MD, JD, FAAEM, FACEP, FCLM, a former EP at EMP in Charlotte, NC, says if the ED chart clearly documents follow-up instructions and the patient understood these instructions, “that is a very valuable tool for defense in malpractice cases.”

In McFadden’s experience, EPs document follow-up instructions well. What they often omit is that the patient understood these, such as “patient was able to repeat back the instructions.”

“That is not often utilized, but it can be a valuable sentence that bolsters the chart,” McFadden says. EPs can ask questions such as “Can you explain what you will do if your pain increases?” and then document the patient’s response.

  • The patient left the ED against medical advice (AMA).

Earley notes that the Supreme Court of Alabama found that an “assumption of risk” defense was appropriate when a patient left an ED after being told that “[he] could die” without proper treatment.1 “After discharge, a laboratory value for this patient indicated he was in diabetic ketoacidosis and, subsequently, the patient died,” Earley says.

The case shows why an AMA form should include specifics about the actual patient’s condition and what could happen without treatment, says Earley, “as opposed to generic possibilities.”


  1. Lyons v. Walker Regional Medical Center, Inc., 868 So.2d 1071, 1087-1088 (Ala. 2003).


  • Sean P. Byrne, JD, Hancock, Daniel, Johnson & Nagle, Glen Allen, VA. Phone: (804) 237-7409. Email: sbyrne@hdjn.com.
  • Mallory B. Earley, JD, Risk Resource Advisor, ProAssurance Companies, Birmingham, AL. Phone: (205) 802-4789. Fax: (205) 414-8390. Email: mearley@proassurance.com.