If ED providers’ documentation conflicts in any way, plaintiff attorneys will use this to bolster a malpractice case.

  • Conflicting documentation makes it difficult for either side to determine what really happened.
  • EPs sometimes fail to review nursing notes because the electronic medical record requires too many clicks.
  • Jurors likely don’t know how difficult it can be for ED providers to view colleagues’ documentation.

With multiple ED providers all documenting in the chart, some conflicting pieces of information are inevitable. This is something plaintiff attorneys comb the ED chart for, with good reason.

“When what the triage people are documenting conflicts with what nurses are saying, which is in conflict with the emergency physician, that typically means that somebody is missing some sort of important sign or symptom,” says Steven M. Levin, JD, founder and senior partner at Levin & Perconti in Chicago.

Errors Not Harmless

Conflicting documentation between an EP and an ED nurse became a key issue in a recent malpractice claim. The ED nurse charted that a patient rated their pain as 9 out of 10 on a pain scale. However, the sparse documentation didn’t even specify where the severe pain was occurring. In contrast, the EP’s documentation made no mention of any pain at all.

“Part of our theory in the case is: Doesn’t the standard of care require you to ask, if patients report significant pain, ‘Where does it hurt and what brings it on, and what are the circumstances surrounding it?’” Levin offers.

The EP ordered a chest X-ray, with chest pain as the indication for why the diagnostic test was ordered. However, chest pain was mentioned nowhere else in the ED chart. “The case is revolving around whether the patient did, or did not, have chest pain,” Levin notes.

According to the triage nurse, the chief complaint was syncope. “As a result of that incorrect characterization, they were looking for different types of symptoms than if they had correctly categorized her as having chest pain,” Levin explains. Additionally, the pain was documented using a checkbox format. “It’s very hard to determine what happens if there is no narrative description,” Levin warns. “That is the problem with using checkboxes.”

Everyone was left to speculate about what the documented pain score really meant. “One expert took the most benign explanation and gave the opinion it was ear pain,” Levin recalls. A nursing expert stated that the pain score signified generalized pain in no specific area. Another nursing expert testified that the patient experienced no pain at all, and that it was documented in error.

“We have looked at this 100 times,” Levin says. “They are all afraid to say it’s chest pain, because everyone agrees that if the patient had chest pain in combination with syncope, that a whole different approach would have been utilized.”

The plaintiff’s case is built around a nursing note indicating significant pain, but with no description at all about the location or quality of the pain, and a chief complaint of syncope, but with a chest X-ray ordered with an indication of chest pain. All this conflicting documentation contributed to the patient’s adverse outcome, according to Levin: “They missed, in our opinion, an aortic dissection, and the patient died.”

Levin says inconsistent charting on the part of EPs and nurses is more than just a harmless documentation error: “It directly impacts treatment, because you don’t know if someone is staying the same, getting worse, or getting better.”

Conflicting information in the ED chart makes it difficult for either side to determine what really happened during the course of the patient’s ED visit.

“The nice thing about EMRs [electronic medical records] is you can read them. The bad thing is, they don’t really tell you what anyone is thinking,” Levin laments. This makes it hard for lawyers to review the care retrospectively. It also poses risks to patients, since communication between providers is hindered. “The care providers who look back in time have no idea what the previous care providers were thinking,” Levin adds. “That’s a big, big problem.”

Too Many Clicks

If the triage nurse documents something about the patient’s condition, or something the patient stated, it’s entirely possible that the EP will never see it — no matter how important it turns out to be.

“Just because it’s in the EMR, doesn’t mean it was communicated to the EP,” says Sheryl Lucas, claims director in the Okemos, MI, office of ProAssurance.

Patients don’t always tell EPs the same thing they tell nurses. In one recent malpractice case, a triage nurse documented that the patient had been sent to the ED to determine whether she had a cerebral aneurysm. “The patient passed away two weeks later from a cerebral aneurysm,” Lucas says. “The case was subsequently settled.”

The EP insisted the patient told him something entirely different about the reason for the ED visit. The EP never read the nursing notes, claiming they were too difficult to find in the EMR. “The ED physician said, ‘It was taking me 12 clicks to get to that point,’” Lucas says.

It is true that some EMRs make it difficult for the EP to review nursing documentation. “In the old world, you could look at the chart and in three seconds have an understanding of what was going on,” Lucas says.

Jurors likely have no idea how difficult it can be for the EP to view nursing notes — and might not believe it even if they’re told.

“There is an assumption that just because it’s in the EMR, it’s easy to find. But information can be buried in places you don’t expect it,” says Arlo F. Weltge, MD, MPH, FACEP, clinical professor of emergency medicine at UT Health in Houston.

Juries assume, sometimes wrongly, that important information would be right in front of the EP. In reality, says Weltge, “there are times it’s hidden. But when you can’t go into the EMR to show them, it’s not easy to explain that to a jury.”


  • Steven M. Levin, JD, Founder/Senior Partner, Levin & Perconti, Chicago. Phone: (312) 332-2872. Email: sml@levinperconti.com.
  • Sheryl Lucas, Claims Director, ProAssurance, Okemos, MI. Email: slucas@proassurance.com.
  • Arlo F. Weltge, MD, MPH, FACEP, Clinical Professor of Emergency Medicine, UT Health, Houston. Phone: (713) 667-4113. Email: Arlo.F.Weltge@uth.tmc.edu.