Misdiagnosis continues to be one of the most common reasons for ED claims, according to a recent report from Coverys, a Boston-based medical liability insurer.1 Investigators analyzed 10,618 closed medical professional liability claims from 2013-2017. Of 1,412 ED claims, 57% were diagnosis-related.

“There was very little in the ED data that surprised us,” says Robert Hanscom, co-author of the report. However, the prevalence of misdiagnosis in ED claims often comes as a surprise to practicing emergency physicians (EPs).

“We find that when we present this data to ED physicians, they seem somewhat surprised that ED malpractice cases are so dominated by missed diagnoses,” says Hanscom, vice president of business analytics at Coverys.

The EPs often express that they thought they were more at risk for other issues. These include wait times leading to adverse outcomes, failure to monitor patients who are waiting for beds, and crisis-response issues (such as a patient suddenly “crashing” and an insufficient response to that event).

“That’s what [EPs] thought might be where the liability is, ahead of our data being presented to them. But it’s not actually true. They do a really good job in those situations,” Hanscom says. The Coverys analysis shows that missed and delayed diagnoses are EPs’ main liability risks.” Hanscom says these two issues usually become key areas of focus in these ED claims:

  • How long was the patient in the waiting room, both before and after triage?
  • Was the patient reassessed while he or she was waiting to be seen?

“The ‘timer’ should be started on any patient who enters the ED,” Hanscom offers. “Once in the inner core of the ED, the ‘timer’ should be reset.”

It’s especially important in the ED setting that timing is documented throughout the entire duration of a patient’s visit. For instance, if a patient is in the ED for a few hours, providers must document accurately time spent in triage, time spent in the treatment room, and the amount of time before treatment was administered.

“This process is beneficial for several reasons,” says Hanscom, identifying patient satisfaction as one reason. “It makes providers much more aware of their patients’ journey, and prevents patients from feeling forgotten about, which is a frequent pain point in healthcare,” Hanscom explains.

Additionally, timeframes often become critical during litigation. Good documentation gives a much more specific window into everything that occurred during the ED visit. “It provides detailed and established care intervals that are much more legally defensible,” Hanscom adds.

Plaintiff attorneys often make an issue of how long the patient waited for a full evaluation. This is where documentation of reassessment at regular intervals becomes important. “Depending on their symptoms, somebody should be checking on them every 15 or 30 minutes, just to ensure that their clinical presentation has not deteriorated or changed in an unexpected way,” Hanscom says.

Plaintiff attorneys also make an issue of how much time the patient waited for treatment. “One of the things that we often see in the ED is that people lose track of the amount of time that has elapsed in the triage, evaluation, diagnosis, and then treatment of each individual patient,” Hanscom says.

EMRs provide the ability to track time through each phase of ED care. “That should be done on a routine basis. An added benefit is that it would also lead to improved patient satisfaction scores,” Hanscom notes.

Do Not Hide Uncertainty

Contrary to what some EPs believe, documenting uncertainty about a diagnosis does not create greater liability exposure. In fact, just the opposite is true. “If a provider is uncertain but the documentation does not reflect that, it is more difficult to later defend a malpractice case,” Hanscom warns.

It’s not enough for the EP just to document uncertainty. It also needs to be conveyed to all concurrent and subsequent providers. “In so doing, the ED physician is preventing others from getting anchored in a diagnosis that is tentative,” Hanscom explains.

This encourages other providers to weigh in on what is really going on with the patient. Hanscom says that documenting uncertainty not only leads to better care and more accurate diagnoses, but also aligns with a tenet from the legal system: Juries and judges do not expect physicians to know everything. They do expect the EP to acknowledge uncertainty and consult with specialists as appropriate.

“If it can be shown that all reasonable steps were taken in response to uncertainty, juries will be favorable to physicians,” Hanscom offers.

Documentation becomes especially critical if the EP is describing a potential diagnosis that has yet to be officially confirmed. “Often, along the way, providers will go through a number of potential ailments and conditions based on the patients’ symptoms,” Hanscom says. To make the diagnosis, the EP must receive final confirmation through an additional test, such as an X-ray, CT scan, or blood test. Until then, EPs must avoid documentation that appears as though the diagnosis is already definite. They can do this by noting it as a “working” or “tentative” diagnosis, or using similar terminology to convey uncertainty.

“This ensures any caregivers or physicians reading the report are aware that nothing has been set in stone,” Hanscom explains.

Also important is for EPs to note any other conditions that a patient might exhibit. This protects patients by ensuring they do not receive a clear bill of health prematurely. “It also protects the provider from being accused of definitively giving an incorrect diagnosis,” Hanscom adds.

At Issue: Medical Decision-making

Two common allegations in the ED claims included in the Coverys analysis include failure to get a complete history, and failure to conduct a thorough examination. Joseph P. Wood, MD, JD, a Cave Creek, AZ-based EP and past president of the American Academy of Emergency Medicine, says frequent interruptions also contribute to misdiagnosis in the ED setting.

“The emergency physician has less time to do some medical decision-making on all the possibilities that could account for the patient’s symptoms, and then systematically work through it,” he explains. “There’s a confirmation bias toward grabbing on to a diagnosis that’s readily available. Subconsciously, you don’t want to entertain one that is not common, or more difficult, or time-consuming.” For example, an EP might admit a chest pain patient with an atypical, non-diagnostic ECG for observation for suspected coronary syndrome. In fact, it could be an aortic dissection, a diagnosis that requires a more involved workup, but one in which a timely diagnosis could prevent a bad outcome.

“It’s reality, and it’s part of the culture in the ED, that nurses and others like to work with an emergency physician who’s quick and doesn’t seem to get bogged down with a lot of tests,” Wood explains.

Of course, ED patients see the situation from a different perspective. Most would prefer a more thorough EP who obtains a complete history and considers all possibilities. “When you are a patient, you want the one that’s a little slower but almost always right, not the one who’s quick and usually correct,” Wood says. “But if you are working in the ED, you like the one that gets them in and out.”

EPs need to be mindful of this, always asking themselves, “What else could this be?,” and consult colleagues as needed, Wood advises. “A fresh set of eyes is always helpful.”

Anna Berent, JD, claims counsel for Houston-based Western Litigation, says most ED misdiagnosis cases fall into one of these three categories:

“Monday-morning quarterbacking” cases. In these cases, the patient has visited the ED one or more times. Their symptoms have changed or evolved, making the correct diagnosis possible. “I would put [in this category] cases concerning transverse myelitis, whose symptomatology does not become readily apparent until more severe consequences such as loss of sensation in the legs, for example, occurs,” Berent says. In such cases, it’s important for ED providers to show two things:

  • The physical exam was well-documented;
  • All symptoms at that time were part of the differential, and were addressed and investigated. “The case of misdiagnosis then becomes weak,” Berent adds.

“Miscommunication” cases. This is a case in which the ED provider makes a diagnosis based on an imaging study, which someone misread or read inconclusively. For instance, a patient is discharged because there is no fracture, yet the next day a final read of the X-ray reveals fracture. The radiology department notifies the ED.

“The communication breaks down at that point, and the patient never learns of the X-ray results,” Berent says.

Cases that are “so close.” An ED practitioner puts the correct diagnosis on the differential. But for whatever reason, the diagnosis is ruled out or put at the bottom of the list of possibilities. Missed pulmonary embolism, aortic dissections, and stroke are common examples.

“These ‘so close’ cases are most difficult for practitioners to accept, as they directly speak to their professional medical judgment,” Berent says.


  1. Hanscom R, Small M, Lambrecht A. Diagnostic accuracy: Room for improvement. Coverys, 2018. Available at: https://bit.ly/2qlmVtz. Accessed June 29, 2018.


  • Anna Berent, JD, Claims Counsel, Western Litigation, Houston. Phone: (713) 358-5964. Email: anna_berent@westernlitigation.com.
  • Robert Hanscom, Vice President, Business Analytics, Coverys.
  • Joseph P. Wood, MD, JD, Emergency Physician, Cave Creek, AZ. Email: soxdoc6@yahoo.com.