An obese male presents to an ED with an obstructed airway due to a peritonsillar abscess. While the EP had drained other abscesses in the past, he thought that the patient’s airway seemed especially compromised, and called an otolaryngologist (ENT) for a consult.

The EP described the patient’s symptoms and observation of the airway. He explained the challenges of draining the abscess to the specialist. The EP did not ask the specialist to come to the ED and treat the patient. The ENT gave advice on the drainage, but did not offer to come in.

“The emergency physician should have followed his initial instinct — that this was more complicated than what he’d seen in the past, and the expertise of the specialist was needed,” says Jayme T. Vaccaro, JD, vice president of specialty operations for professional liability in the Lafayette, CA, office of Sedgwick.

When the EP administered an anesthetic, the patient immediately gagged on secretions and control of the airway was lost. Intubation failed. A cricothyrotomy was unsuccessfully attempted by a trauma surgeon and a tracheostomy was performed. The patient suffered severe brain damage and died. The family sued the EP, the ED group, the ED nurses, and the ENT. All parties were dismissed from the lawsuit — except for the EP and his group.

The primary allegation: If the EP had asked the ENT to come in, the abscess drainage might have been successful, and all the other complications would have been avoided.

“Even if the complications still occurred, the EP would have met the standard of care by properly calling for a specialist,” Vaccaro notes. The following issues complicated the defense of the claim:

  • The EP assumed he could care for the patient, even though the treatment was beyond his expertise;
  • The EP did not communicate clearly with the specialist;
  • The EP never asked the specialist to come to the ED;
  • The EP failed to document the entire discussion with the specialist.

“Taking on the care of a specialist, or not conferring with a specialist, can lead to a plethora of challenges for the emergency physician,” Vaccaro says.

To avoid needless legal entanglements, Vaccaro says EPs should know when they’re in over their heads and remain firm about what they need from the consultant. Invariably, specialists testify that while the EP asked for their opinion, the EP never asked or insisted that the specialist come in — and that had the severity of the situation been explained, the specialist certainly would have come to the ED, says Vaccaro, who recommends EPs take these steps:

  • Thoroughly document the consult, including the patient’s condition and the specialist’s advice;
  • If the specialist is asked to treat the patient or come into the ED, clearly document the request and the specialist’s response;
  • If the specialist refuses to come to the ED, attempt to find another specialist;
  • If the specialist takes too long to come in, document all attempts to follow-up;
  • If the EP is inexperienced or new to the department, find a senior physician for guidance and assistance.

“If life-threatening treatment is needed, and the EP proceeds with care without a specialist, this documentation will usually shed light for a jury on the genuine, repeated, and sincere efforts of the emergency physician,” Vaccaro notes.

As EPs see undifferentiated patients, a multidisciplinary approach to care is needed. This is true even if patients don’t require a specialist, says Michael B. Weinstock, MD, associate program director of Adena Emergency Medicine Residency and director of medical education and research at Adena Health System.

“Emergency medicine systems typically get into trouble when an emergent consult is needed. To some degree, we are at the mercy of the consultant’s decision,” says Weinstock, who also serves as an adjunct professor of emergency medicine at Wexner Medical Center at The Ohio State University.

On the other hand, the consultant’s decision-making is dependent on the EP’s accurate description of the patient’s condition.

“So, it’s a symbiotic relationship,” Weinstock offers. “It’s important that both sides are truthful and express accurately the urgency of the situation.” The documentation of the interaction becomes very important if litigation occurs. Occasionally, ED charts even omit the name of the consultant. This wouldn’t be an issue in a rural ED with only one consultant on call at the time of the ED visit. “However, if you are in an academic institution, there are multiple possibilities of people you could have spoken with, and you won’t remember who it was months later,” Weinstock cautions.

Poor communication further complicates matters. In Weinstock’s experience, EPs sometimes fail to give consultants a good picture of what’s going on at the bedside. They either overestimate or underestimate the urgency of the situation.

“From working in large EDs, and listening to many people, speaking with consultants, I can tell you that, often, the way they describe the encounter is actually nothing like the way the encounter actually occurred,” Weinstock reports.

Omitted Facts

It’s important for EPs to give the specialist an opportunity to ask questions. “At 3:00 a.m., we have an interest in trying to make the presentation brief and pointed,” Weinstock says.

Sometimes, information omitted by the EP is very important to the specialist. An EP might inform the consultant that a patient experienced right lower quadrant abdominal pain, with a CT scan that showed non-specific findings, while omitting two other pieces of information: The blood pressure was 50, and there was altered consciousness.

“That would totally change the equation in terms of the urgency of the situation,” Weinstock says. The omitted facts would raise the possibility of a ruptured bowel or appendix that can cause sepsis.

Weinstock would like to see this documentation in the ED chart for this case: “I discussed the case with Dr. X, including a blood pressure of 50, a heart rate of 140, and a CT scan that shows non-specific findings. Dr. X said he will be down to see the patient within the hour.”

While the EP might prefer the specialist come sooner, an hour could be reasonable. The delay doesn’t necessarily rise to the level of needing to call the department chair. If, on the other hand, the specialist insists he will see the patient in the morning, the EP needs to escalate the situation.

“Timing is everything if litigation occurs. The most common reason for ED lawsuits is failure to diagnose, but the second most common is failure of timely management of a patient,” Weinstock warns. The EP may have diagnosed abdominal aortic rupture correctly but waited an hour to contact the consultant, delaying the necessary surgery and resulting in a poor outcome.

Weinstock says EPs should remember why they are calling the consult in the first place: Because the specialist has specific expertise that’s needed.

One patient who presented to an ED in cardiac arrest was resuscitated, and the ECG was concerning for ischemia. The EP contacted the on-call cardiologist to perform an emergent catheterization, presuming that the patient was suffering a myocardial infarction. The cardiologist declined, and recommended that the patient undergo a CT scan of the brain. The EP called the chair and hospital administrator.

“It turns out that the patient had a subarachnoid hemorrhage,” Weinstock relates. “The specialist was correct, in the sense that the patient did not have a coronary occlusion.”

To reduce the likelihood of similar misunderstandings, Weinstock recommends stating the reason for the call first, such as “My patient is having a STEMI. I need you to come in and do an emergent cath.”

“That is what they need to know upfront. They can hear about the family history later,” Weinstock adds.


  • Jayme T. Vaccaro, JD, Vice President, Specialty Operations, Professional Liability Claims, Sedgwick Claims Management Services, Lafayette, CA. Phone: (510) 230-3966. Email:
  • Michael B. Weinstock, MD, Associate Program Director, Adena Emergency Medicine Residency/Director of Medical Education and Research, Adena Health System; Professor, Emergency Medicine, Department of Emergency Medicine, Wexner Medical Center at The Ohio State University, Columbus. Phone: (614) 507-6111. Email: