The EP reads a chest X-ray as normal, and the patient is discharged. However, the radiologist’s report the following day tells a different story: “0.5 cm pulmonary nodule. Recommend clinical correlation and repeat imaging in six months.”

Alan Gelb, MD, clinical professor in the department of emergency medicine at University of California, San Francisco School of Medicine, has reviewed multiple malpractice lawsuits alleging that the EP failed to follow up on such incidental findings.

“If there is no reconciliation process, and the patient has lung cancer that goes undiagnosed, everyone gets sued,” Gelb says. The EP can be held liable for failure to “close the loop” on non-emergent abnormal findings. The hospital can be held liable for not instituting a reconciliation process to flag discrepancies between the EP’s readings and those of the radiologist.

“Most of these cases I have reviewed have settled,” Gelb notes. “There are lots of ‘horror stories.’”

In one ED malpractice case, a patient’s urinalysis revealed a urinary tract infection, but the patient was discharged without it being identified. The patient was not contacted about it. “The untreated urinary tract infection becomes E. coli and claims the patient’s life,” recalls Amy E. Goganian, Esq., an attorney at Goganian & Associates in Needham, MA. “The ED doctor was sued, and the case settled during discovery.”

The hospital needs a process to ensure follow up if abnormal results are not acknowledged during the ED visit, Gelb advises. This should include X-rays and labs that include blood and sexually transmitted disease cultures. Gelb recommends these approaches:

  • Systems to prompt the EP when there are abnormal results, and when X-ray findings by the radiologist are different than the preliminary findings of the EP.

“The EMR might also prompt a different provider than the one who discharged the patient, but is responsible for these follow-ups,” Gelb adds.

  • In the event the patient cannot be contacted, an “alert” in the medical record system that pops up whenever and wherever in the system the patient is seen.

“This is difficult to set up in many systems, but can be done,” Gelb says.

  • Documentation of attempts to notify the patient, and how the results were eventually communicated to the patient.

Goganian says these practices reduce legal risks for EPs:

  • Whoever requests the test should review the results;
  • Patients should be instructed to call for results;
  • Patients should be contacted with results, and the ED record should reflect this;
  • Rapid follow up should be scheduled;
  • Discharge instructions should instruct the patient to return if symptoms do not improve or get worse.

“A significant adverse test result with no or delayed follow up or plan of care makes it easier for the plaintiff to prevail,” Goganian warns.

Admitted Patients Are High Risk

Failure to follow up on abnormal test results of discharged ED patients “remains a significant and preventable area of patient harm and liability,” according to Alan Lembitz, MD, chief medical officer at Copic, a Denver-based medical professional liability insurance provider.

Typical allegations in malpractice cases involving discharged ED patients include:

  • failure to follow up on incidental findings on imaging studies;
  • discordant findings in the final radiology report from what was acted on by the EP;
  • failure to follow up on studies that did not return prior to discharge, such as cultures or pathology.

EPs typically are well-versed in the importance of good discharge instructions, however, and many EDs do have systems in place to reconcile abnormal imaging and labs post-discharge. For this reason, says Lembitz, “The higher risk is now the admitted patient.”

No discharge instructions are given to patients admitted from the ED. EPs simply assume that the next provider (a hospitalist, surgeon, or admitting physician) will follow up and act on the results of tests or labs ordered in the ED.

In one case, a 45-year-old female with right upper quadrant pain was direct-admitted to the surgeon, who scheduled a laparoscopic cholecystectomy for the following morning. “During the surgery, major bleeding is encountered from many sources, and during conversion to open procedure, she arrests and dies,” Lembitz recalls.

It was discovered later that the patient was taking warfarin, and that at the time of the ED visit the patient’s international normalized ratio was 6.5. “No one on the inpatient service was alerted of the abnormal finding in the ED, which was assumed to be communicated to that service. Hence, no direct contact was made,” Lembitz says.

Lembitz has seen multiple malpractice lawsuits involving ED patients who undergo CT imaging to rule out pulmonary embolism. An incidental lung nodule is noted, the patient gets admitted for other reasons, and no one ever follows up on the lung nodule. “The EP is named on the CT order, he or she assumes the inpatient service will see it, yet they only see that pulmonary embolism or whatever the indication for CT was has been ruled out,” Lembitz explains.

Another case involved a 60-year-old man whose CT scan ordered in the ED revealed appendicitis. The EP told the patient of an incidental kidney mass, but the patient received no further follow up of it after the successful appendectomy. “The patient assumed that when the surgeon was ‘in there,’ he checked it out,” Lembitz notes. In reality, the surgeon was never aware of the finding. “Despite the report being in his office records for post-op care, he never saw it,” Lembitz recalls. “The patient dies of metastatic kidney cancer two years later.”

Multiple factors contribute to these terrible outcomes. “Poor handoffs, EHRs that are ‘noisy,’ lots of extraneous information but [records] are unclear about important follow up, and insufficient communication lead to these preventable harms,” Lembitz says.

One solution is a “built-in redundancy” to the system, Lembitz suggests. “The EP could directly communicate significant findings that they know are likely to lead to harm if missed by a direct communication with the subsequent provider.”


  • Alan Gelb, MD, Clinical Professor, Department of Emergency Medicine, UCSF School of Medicine, San Francisco. Phone: (510) 790-2784. Email:
  • Amy E. Goganian, Esq., Goganian & Associates, Needham, MA. Phone: (781) 433-9812. Fax: (781) 433-9818. Email:
  • Alan Lembitz, MD, Chief Medical Officer, Copic, Denver. Phone: (720) 858-6133. Fax: (720) 858-6003. Email: