ED nursing documentation frequently becomes an issue in malpractice litigation against EPs. Some risk-reducing strategies:

  • Create ED policies requiring nurses to verbally communicate any abnormal vital sign to the physician.
  • Require EPs to obtain additional information from nurses or the patient before the patient leaves the ED.
  • Mandate triage nurses to ask patients, “What is the main concern you have today?”

ED nurses documented a 46-year-old woman’s chief complaint as: “Chest pain. Pain from above waist to head, neck, and arms.” The ED’s discharge diagnosis, in contrast, was: “hypertension and bronchospasm.”

The patient died the following day of a heart attack. “It’s a classic example of how the provider didn’t get the question the patient was asking: ‘Am I having a heart attack?’” says Michael B. Weinstock, MD, adjunct professor of emergency medicine at The Ohio State University Wexner Medical Center. “If the provider had simply read the nursing documentation and attempted to answer the question, the outcome may have been different.”

The outcome of many a malpractice lawsuit has turned on something an ED nurse documented. “ED nursing documentation comes up in almost every case. Vital signs are sometimes the only objective data in a chart replete with subjectives,” says Robert Broida, MD, FACEP, director of U.S. Acute Care Solutions’ risk management department and COO of Physicians Specialty Ltd.

For an EP defendant, Broida says a confirmatory nursing note is “golden. Juries may not sympathize with a physician, but everyone loves nurses.”

Yet many EPs don’t read nursing notes at all, Weinstock says. electronic medical records (EMRs) are a common obstacle. “The problem is there is such a tremendous amount of information, it’s almost an impossible task to get through it,” Weinstock explains.

Some EMRs put the nursing documentation in a different area than the EP uses for his or her documentation. Thus, the EP might see the patient’s chief complaint of headache as documented by the triage nurse, but might not see additional ED nursing notes stating that the patient has a fever and reported exposure to someone with meningitis. If the patient ends up with a missed meningitis diagnosis, the plaintiff attorney can point out that the information was available to the EP, but was ignored.

After such a “divided EMR” case was reported, Broida’s group developed an ED nursing policy that requires nurses to verbally communicate any abnormal vital sign to the EP. Nurses automatically re-check any abnormal vital signs in 30-60 minutes. “This overcomes the new EMR technologic hurdle with good, old-fashioned, direct communication between team members,” Broida says.

To sign off on a chart, some EMRs require EPs to click a box that reads, “Nursing note reviewed and I agree with assessment.” Jesse K. Broocker, JD, an attorney at Weathington McGrew in Atlanta, says, “If it is there to be gleaned from the chart, you can bet the EP will be asked about why they did not avail themselves of that information. We always prepare our EPs to answer that line of questioning at deposition or trial.”

There is “almost always” some finding in a nursing note that is relevant to a diagnosis the plaintiff attorney claims the EP missed, Broocker notes. In one case, the patient’s mental capacity at the time of the evaluation was in issue. The EP had documented that the patient appeared alert and oriented, but a nursing note stated, “Patient appears intoxicated and is slurring words.”

“Plaintiff counsel spent a lot of time asking about that note and then arguing that we should have known about it,” Broocker says.

Address Conflicts Directly

If the ED nurse documents something concerning, the EP needs to “address it head on,” Weinstock says.

“Every experienced EP will say they’ve been saved by an ED nurse who offered information that the patient didn’t tell to the EP,” he notes.

Weinstock recommends conducting a “hard stop” with medical decision-making after the EP has addressed the patient’s main concern. “If your evaluation and documentation do not flow in a logical manner, go back and get additional information before the patient leaves the ED,” he says. ED patients frequently report other symptoms to ED nurses, in addition to their chief complaint. “That needs to be addressed somewhere in the documentation,” Weinstock advises.

ED patients interact with multiple providers — the person at the triage desk, the nurse who checks their vital signs, the person who registers them, the technician who sets them up in a room, and the resident — before they finally see the EP. “They might have told the story six times, and don’t feel the need to repeat it again,” Weinstock says. Many ED patients assume the EP is aware of everything they’ve reported to others.

“We incorporated a triage question into our process: What is the main concern you have today? This helps to focus the evaluation and address the patient’s concerns,” Weinstock says.

Weinstock believes the best approach is for the EP to ask the nurse — or the patient directly, if possible — for clarification. If the nurse documents, “Patient reports headache,” which wasn’t reported to the EP, the EP may learn a moderate headache occurred a week ago and was resolved, or that the headache started 30 minutes ago and has increased in intensity. Similarly, if the nurse reports a patient was “lethargic,” more details could show that a serious bacterial infection is unlikely. The EP could then document, “mom explained that the child’s nap was two hours instead of one, and it seemed like it took longer to wake up. The child is now acting normally.”

“The more specific documentation is usually the one that wins out,” Weinstock says.

Defensive Charting

Broocker often sees “blanket defensive charting from nurses, with the infamous ‘MD notified’ after every entry.” Nurses often believe this protects them legally in the event of a malpractice claim. “In one case, we contested this entry. It was a ‘he said/she said.’ Thankfully, it settled,” Broocker recalls.

Broocker says it is always best when the EP and ED nursing documentation is in sync. “In most of my cases, the EP is an independent contractor. So the nurses are represented separately, and this is not always a given,” he says.

On the other hand, nursing notes such as “patient in no acute distress, resting comfortably, pain resolved” can greatly help the EP’s defense. “These notes are wonderful in cases of discharge or non-emergent disposition,” Broocker says.

In some cases, the EP’s defense is that the patient’s underlying emergency wasn’t evident at the time of the ED visit. “When the nurses back up that the patient objectively looks good in the ED, I always point out these notes as reinforcing our position,” Broocker says.

Broida took this one step further and developed a proactive discharge ambulation policy. Nurses document the patient’s ability to walk a few steps before discharge from the ED. “This ‘road test’ takes almost no time, costs nothing, and acts to confirm the physician’s neuro assessment in a concrete way,” Broida says.

Such confirmatory charting can be helpful when the patient’s neurologic status evolves over time. “The nurse’s documentation makes the physician’s charting much more credible in court,” Broida says.


  • Robert Broida, MD, FACEP, Director, Risk Management Department, U.S. Acute Care Solutions; Chief Operating Officer, Physicians Specialty Ltd, Canton, OH. Phone: (941) 960-1695. Email: rib@ed-qual.com.
  • Jesse K. Broocker, JD, Weathington McGrew, Atlanta. Phone: (404) 524-1600. Fax: (404) 524-1610. Email: JBroocker@weathingtonsmith.com.
  • Michael B. Weinstock, MD, Adjunct Professor, Department of Emergency Medicine, The Ohio State University Wexner Medical Center, Columbus. Phone: (614) 507-6111. Email: mweinstock@ihainc.org.