Dozens of times each shift, EPs determine the appropriate disposition for patients. “Many times, what is appropriate and best, not to mention safest, is for our patients to be discharged home,” says David J. Ahee, MD, medical director in the department of emergency medicine at St. John Medical Center - Macomb Township (MI).

A well-documented, appropriate reassessment can reduce legal risks, Ahee says, and should include proof that the EP spoke to and examined the patient, as well as repetition of pertinent portions of the physical exam. Two common examples: A repeat exam that documents less tenderness in an abdominal pain patient, or a repeat pulmonary exam that documents improved air entry and exchange with less wheezing in an asthmatic or COPD patient.

When it comes to obtaining an updated set of vital signs, this documentation should show improvement from the initial set of vital signs taken at triage. If a patient presented with fever and tachycardia, and no serious pathology was identified, then one would expect that patient to be afebrile and with a normal heart rate at time of discharge.

The medical decision-making involved in the reassessment process allows the EP to explain abnormalities and cite likely causes. For example, the EP might chart “patient tachycardic due to mild hypovolemia and fever.” Then, the EP can document resolution prior to discharge after appropriate treatment (such as antipyretics and IV fluids).

When it comes to documenting both subjective and objective measures of clinical improvement, if a patient presented with nausea and vomiting, for instance, then the patient should report less nausea, absence of vomiting, and a successful oral challenge. “This should coincide with objective data,” Ahee notes.

Exposure to Litigation

Sometimes, an ED patient’s condition worsens during the hours he or she is in the department. “Not reconciling the subjective and objective data and citing clinical improvement and normalization of abnormal vital signs can certainly result in poor outcomes — and, hence, exposure to litigation,” Ahee explains.

A good reassessment can prevent the bias of premature closure. “If abnormalities persist despite what should have been appropriate treatment, it should cause the emergency physician to explore alternative possibilities,” Ahee offers.

Is the patient with fever and tachycardia showing no clinical improvement after appropriate treatment? It may not be a simple viral syndrome after all but a life-threatening thyrotoxicosis.

“However, for this to be recognized and addressed, a provider must return to the bedside, review the pertinent history, repeat portions of the physical exam, and obtain a new set of vital signs,” Ahee cautions.

Lack of improvement, new symptoms, abnormal exam findings, or abnormal vital signs can go undetected. “Ultimately, this may lead to a bad outcome for both patient and physician,” Ahee notes.

The EP may decide it’s still appropriate to discharge the patient, even with abnormal vitals. But in that case, these three pieces of documentation are “imperative,” according to Ahee:

  1. The EP’s rationale for the abnormalities;
  2. A definite plan for follow-up;
  3. Clear instructions as to when the patient should return to the ED.

For instance, it is not unreasonable to discharge an asthmatic patient with significant improvement in symptoms and an appropriate peak flow, even with an elevated heart rate. “But one must be clear that the patient’s tachycardia is noted and thought to be due to administration of inhaled beta-agonist, and not a sign of respiratory distress,” Ahee says.

Ideally, in this case, Ahee says the ED chart should contain documentation of a discussion with the patient’s primary care provider regarding arrangement of follow-up care, as well as a discussion with the patient about the need to return to the ED with new or worsening symptoms. Sometimes, a reassessment prior to discharge results in patient admission. “It is not uncommon or unusual to have a planned disposition change following patient reassessment,” Ahee notes.

Some common examples:

  • a patient fails an oral challenge and is unable to remain hydrated without IV fluids;
  • a patient who presented without fever spikes a fever while in the ED, prompting further investigation with an expanded differential diagnosis;
  • a patient’s initially non-localizing abdominal exam changes now demonstrate tenderness in the right lower quadrant.

In asthmatics or COPD patients, a simple resting pulse oximetry might be inadequate to assess the ability to return home. “What is more crucial is obtaining a functional test, such as an ambulatory pulse oximetry,” Ahee says. This can determine that a patient has shown enough improvement to return to his or her normal daily activities. On the other hand, says Ahee, “a simple walk around the ED may demonstrate a degree of tachycardia, tachypnea, and hypoxia that is not appreciated with the patient at rest, thus, changing the anticipated disposition.”

In ED medical malpractice cases, it’s not uncommon that the patient was discharged with abnormal vital signs — most commonly, tachycardia — according to Mark Spiro, MD, chief medical officer of the Walnut Creek, CA-based The Mutual Risk Retention Group.

Even if the abnormal vital sign is in no way relevant to the bad outcome, “it’s one more issue that the defense has to overcome if this is not addressed in the chart. It’s a strike against them,” Spiro warns. The unaddressed abnormal vital sign suggests the EP is sloppy, rushed, and careless, instead of the cautious, caring provider the defense team aims to portray. At deposition, the EP can expect a question such as: “Is a heart rate of 110 normal, doctor?” and will have to answer “No.”

A worst-case scenario: The abnormal vital sign was relevant to the patient’s bad outcome, but the EP wasn’t aware of it until the litigation. Sometimes, this happens when nursing documentation went unread because it was buried within the EMR.

“EMRs, ideally, will ‘pop up’ the discharge vital signs so the EP can see them. If [the vital signs] are hard to find, then the system needs to be addressed,” Spiro says.

To guard against this possibility, Spiro recommends a “team discharge” process conducted by the EP and nurse at bedside. This is a golden opportunity for any missing information, or contradictory information, to be aired and addressed. “In some EDs, team discharge has become the standard. And since this process was implemented at those sites, malpractice risks have decreased,” Spiro reports. Here are some benefits of the team discharge process:

It limits the plaintiff’s ability to argue that inadequate or no discharge instructions were given to the patient. This is a common allegation in ED-related medical malpractice litigation. “Patients either claim that they weren’t given discharge instructions, or they claim that they thought the ER would make a follow-up appointment for them,” Spiro notes.

It guards against cognitive bias. Perhaps someone disregarded an abnormal vital sign, such as tachycardia, because it contradicted the EP’s initial impression. “Taking that step back and saying, ‘Why is the pulse so high?’ is good for patient care. It is also legally protective if there’s a bad outcome,” Spiro says.

It prompts the EP to document why the patient is discharged with an abnormal vital sign. “The disease process may be such that that’s what you expect, or maybe the patient is on some medication that would cause tachycardia,” Spiro offers.

Whatever the reason, it’s incumbent on ED providers to explain their rationale for saying the discharge decision is still appropriate. This needs to be charted — and not just to prevent malpractice litigation. “It serves two purposes. It also provides better care, because the EP has actually thought through why this patient is OK to discharge with abnormal vitals,” Spiro says.

Some EPs direct nurses to discharge the patient. Regardless of how minor the chief complaint, the EP always should see the patient prior to discharge, Spiro advises. Sometimes, it becomes apparent that the patient shouldn’t be discharged after all.

“That’s probably happened to all of us,” Spiro says. In one case, a young person who had presented with chest pain showed what appeared to be a normal workup. But right before discharge, Spiro thought the patient “just didn’t look quite right.” Spiro found a thoracic aortic dissection after a reassessment. Such “near-miss” cases underscore the need to ask the question “Is there something else going on?”

“You should be careful not to have tunnel vision — the mindset that your initial impression is correct — and, therefore, contradictory findings are disregarded as irrelevant,” Spiro cautions.

The EP does not always have to be right to have met the legal standard of care. But the EP does need to have thought through the reasons for the decision to discharge in a rational manner. “What hurts you is when you don’t address an abnormal finding,” Spiro adds. “That hurts patient care — and it increases your malpractice risk.”


  • David J. Ahee, MD, Medical Director, Department of Emergency Medicine, St. John Medical Center - Macomb Township (MI). Phone: (586) 416-7515. Email:
  • Mark Spiro, MD, Chief Medical Officer, The Mutual Risk Retention Group, Walnut Creek, CA. Phone: (925) 949-0124. Email: