There are several common issues concerning ED malpractice claims involving stroke patients. Greg Henry, MD, FACEP, has reviewed more than 2,000 medical malpractice cases. He is clinical professor in the department of emergency medicine at the University of Michigan Medical School, former chief of the department of emergency medicine at Oakwood Hospital-Beyer Center in Ypsilanti, MI, and co-author of Neurologic Emergencies (McGraw-Hill Medical). Here, Henry weighs in on what he sees in such cases.

  • Failure to conduct a repeat exam.

“This is one of the worst mistakes you can make,” Henry warns.

He gives this scenario: A stroke patient presents within the three-hour time frame. The EP has engaged in a shared decision-making discussion with the family. There is right arm and leg and face involvement, so it’s clearly an anterior circulation lesion.

For this patient, Henry says, “The only reason you do a CT is ‘Blood: yes or no?’ Because if you see a stroke on the CT, it’s probably outside of the time window.”

One ED malpractice claim involved a patient who came back from a CT scan whose family members noted he was suddenly able to move his arm.

“There is no support anywhere for giving tPA in a patient who is getting better,” Henry says.

Despite this, tPA was administered to the patient, who lost consciousness. The family sued, alleging that the EP didn’t re-examine the patient to see if his neurological status had changed. “If there is a positive exam and you send them for CT, make sure you re-examine the deficits again before you start the medicine. Because you will have a hard time defending it if somebody says later on, ‘No, that’s not the way he was at all,’” Henry explains.

  • Inaccurately checking off items in EMR checkboxes.

“Write what you do, but do what you write. Don’t be making stuff up, or padding the account,” Henry cautions.

During one malpractice trial, it became painfully obvious that what the EP had documented was more than what anyone actually performed.

“The plaintiff attorney took this guy down the garden path,” Henry recalls. The attorney started out by saying: “It says here you evaluated accommodation. Tell me the pathway of accommodation.”

“You don’t need that to diagnose a stroke. If all you had was accommodation, why would you be giving tPA, which is a dangerous drug?” Henry asks.

In another case, the patient’s abnormal gait — or lack thereof — became a key issue. It was checked off in the EMR, but no one could back up the fact that the EP had walked the patient. The family said it never happened, and the ED nurse and technician didn’t remember it happening.

“If you are going to say the patient’s gait is abnormal, you better have gotten the patient off the bed and done it,” Henry stresses.

  • Administering tPA for posterior fossa stroke.

“Posterior fossa stroke has never been shown to be improved by tPA,” Henry says. “Some research has shown benefit for tPA, but only for anterior circulation,” Henry adds. “You better be prepared to defend it if you give it to someone else. If the neuro wants it given, maybe he ought to come in and give it, or you want his name and his direct order on that chart.”

  • Failure to transfer the patient, if needed, to meet the treatment window.

“If your hospital doesn’t give tPA, get the patient out of there,” Henry says. “If time is running out, you may have to start the medicine and transfer the patient.”

What the EP should not do is hold a thorough discussion with the family and decide to give tPA without taking action.

“If all of a sudden there’s this big gap in time, that doesn’t make any sense,” Henry notes. “Either you believe it could be effective, or you don’t. If you believe it, you better give it now.”

  • Failure to be clear about the downside of tPA.

“Don’t use the term ‘magic medicine.’ Because it isn’t,” Henry says.

Agreement to give tPA is agreement to take a chance, he says. After an honest discussion about what the drug can and cannot do, Henry says it’s perfectly reasonable for EPs to give their honest opinion. Families often feel guilt when things go wrong, Henry laments.

“And when they are disappointed in the result, they are likely to blame the emergency physician.”


  • Greg Henry, MD, Clinical Professor, Department of Emergency Medicine, University of Michigan Medical School. Email: