Malpractice claims alleging missed aortic dissection, epidural spinal abscesses, and hematomas are settled often, even if the standard of care was met. This documentation helps the ED defense:

  • The EP considered the diagnosis;
  • The EP believed it was sufficiently unlikely that an MRI or CT scan was not indicated;
  • Patients presented without symptoms such as fever or severely supratherapeutic international normalized ratio.

Did the emergency physician (EP) consider a particular diagnosis, but rule it out for entirely valid reasons? Many such “missed diagnosis” claims end up settled.

“Frequently, EPs are finding themselves forced to settle cases where they absolutely met the standard of care,” says Marc E. Levsky, MD, a board member of the Walnut Creek, CA-based The Mutual Risk Retention Group and an EP at Marin General Hospital in Greenbrae, CA.

Defensible cases are settled sometimes because the plaintiff is sympathetic or because the dollar value of damages is high, as with a plaintiff requiring lifelong medical care. A settlement avoids the possibility of a massive verdict in excess of the EP’s coverage limits.

“Unfortunately, these factors probably have a much greater impact today on the decision to settle than does the quality of the care rendered,” Levsky laments.

Here are three common examples:

1. Aortic dissections. These are catastrophic, yet frequently missed, diagnoses. “They are relatively uncommon, and may mimic more common diagnoses,” Levsky explains. Symptoms are similar to acute coronary syndrome. Patients with aortic dissection can present atypically, with few, if any, symptoms at all.

Additionally, the testing required to make the diagnosis, a contrast-enhanced CT of the entire aorta, is not only costly but poses significant risk in terms of radiation. For these reasons, Levsky says, “Missing an aortic dissection, especially one that presents atypically, is within the standard of care.”

For cases in which some symptoms of aortic dissection, such as chest pain, are present, Levsky says it’s especially important for EPs to document that the diagnosis was considered. One such case involved a 50-year-old man who presented to a community ED with dizziness, hypotension, and bradycardia. He denied experiencing any chest pain, and other than the vital signs, the physical exam was normal, including a nonfocal neurologic exam. The ECG showed no ischemic changes. Lab tests revealed an elevated white blood cell count, but was otherwise unremarkable.

“The patient was admitted to the hospital for workup of presumed sepsis. However, he coded some six hours later,” Levsky recalls. The man was resuscitated successfully, and a chest CT scan showed a Type A aortic dissection. The patient’s neurologic status never recovered, and he remained unresponsive. “He was deemed not to be a surgical candidate by the local tertiary care facility. Ultimately, care was withdrawn,” Levsky notes.

Experts reviewing the claim believed the EP met the standard of care. Despite this, the insurance company and the EP defendant decided to settle.

“This was due to the fact that it was a high-exposure case, with a patient who was a highly compensated individual. He had young children; thus, his family would likely find sympathy with a jury,” Levsky says.

2. Viral infections. A recent malpractice claim alleged delayed diagnosis of viral infection in an ED patient. The defense argued successfully that the ED care was not negligent, despite the patient’s death. The patient presented to an ED with fever and open sores on his forehead, back, and upper extremities. Lab results showed no elevated white cell count, but the patient was admitted for observation.

“The skin eruptions did not clear up, but it wasn’t until days later when the biopsy results came back that it was found that the patient was suffering from not a bacterial infection, but rather a viral infection,” says Robert D. Kreisman, JD, a Chicago-based malpractice attorney.

An antiviral drug was administered, but the patient died several days after admission. The patient’s family sued the EP, the infectious disease specialist, and the hospital. The defense argued that the diagnosis of bacterial or viral infection was not immediately possible because the biopsy results were not available until several days later. “Even though it was claimed that the viral infection was missed in the emergency department and then not correctly treated by infectious disease, there was no finding of negligence by the jury,” Kreisman says.

The plaintiff attorney argued that the patient should have been started on both antiviral medication and antibiotics in the ED while waiting for the biopsy results. “The defendants were adamant that no negligence in the treatment of this patient occurred,” Kreisman adds.

No offer was made to settle. “Jurors polled after the trial stated that they found the defense expert much more instructive and persuasive than the plaintiff’s infectious disease expert, who really seemed to be out of his depth in this area,” Kreisman notes.

3. Epidural spinal abscesses and hematomas. “These are potentially catastrophic and rare, and masquerade as something benign and ubiquitous — radiculopathy due to disc disease,” Levsky explains.

MRI, the definitive test for this condition, is not available in all EDs. Even when available, an MRI is very costly in terms of time and money. “It generally involves the decision to monopolize a scarce resource, rendering it unavailable to other patients who need it,” Levsky says.

EPs rely mostly on their history and physical exam to determine who needs an MRI, Levsky adds. If epidural spinal abscess or hematoma is missed, the ED chart ideally indicates that the EP considered the diagnosis but believed it sufficiently unlikely that an MRI was not indicated.

Good documentation such as this is helpful to EPs in this situation, Levsky offers. “I considered the need for emergent MRI. However, it does not seem necessary given a completely normal neurological exam, including strength, sensation and gait, and normal vital signs, including absence of fever,” he says. “Also, there is no significant anticoagulation, spinous tenderness, urinary retention, or injection drug abuse. Close follow-up is arranged and feasible, and strict return precautions given.”

Patients presenting with symptoms of radiculopathy, but without signs of a more serious problem such as fever or severely supratherapeutic international normalized ratio, generally are not tested with MRI. “Thus, to miss epidural spinal abscesses or hematoma in these individuals is within the standard of care,” Levsky adds.

A recent malpractice case involved a 43-year-old woman who visited an ED three times over a five-day period complaining of neck pain. On the first visit, she was seen by a physician assistant, who noted normal vital signs and exam, and discharged the patient with pain medication and follow-up. On the second visit 48 hours later, a normal neurologic exam was documented again. However, the patient was noted to exhibit elevated temperature and pulse. After pain medication was administered, the vital signs had normalized and the patient was again discharged.

“On the third visit, she complained that she could not walk. The exam still showed intact strength throughout,” Levsky says. Since MRI was not available at night, the patient was admitted with an MRI ordered for the next day. During the night, the patient was noted to have a deteriorating neurologic exam. “A neurosurgeon was consulted, an MRI was done, and the patient was found to have a cervical epidural abscess,” Levsky recalls. The patient was taken to surgery, and thereafter demonstrated diminished strength in her extremities.

The plaintiff’s expert argued that due to abnormal vital signs, an emergent MRI was indicated at the second ED visit. “Due to the high-dollar value life care plan put forth by the plaintiff, the case was settled by several involved physicians and facilities,” Levsky says.


  • Robert D. Kreisman, JD, Attorney, Kreisman Law Offices, Chicago. Phone: (312) 346-0045. Email: bob@robertkreisman.com.
  • Marc E. Levsky, MD, Board Member, The Mutual Risk Retention Group, Walnut Creek, CA; Emergency Physician, Marin General Hospital, Greenbrae, CA. Phone: (925) 949-0100. Email: levskym@tmrrg.com.