An ED patient was very specific during the nursing evaluation of his chest pain: It worsened during exertion. He also reported an extensive family history of cardiac problems.

Both worrisome pieces of information were carefully documented in the ED nursing notes. However, they were mentioned nowhere in the EP’s documentation. This became a key issue during malpractice litigation.

“Patients are frequently more comfortable with nursing staff because nurses spend more time with individual patients. The picture they get is sometimes more complete,” says Joan Cerniglia-Lowensen, JD, an attorney at Towson, MD-based Pessin Katz Law who represented the EP.

At the time the EP evaluated the patient, the patient minimized the chest pain. The patient also suggested it might be caused by eating certain types of foods, and that antacid improved the pain. “This caused the EP to conclude it was a gastroesophageal problem,” Cerniglia-Lowensen says. In contrast, the ED nursing documentation indicated (correctly) concern that the problem was cardiac.

The patient was referred to a gastroenterologist, who also believed the problem was gastric. The patient was scheduled for an endoscopy, but died of a myocardial infarction in the interim. The patient’s family sued the EP, the gastroenterologist, and the hospital; the parties later settled the claim. The case would have been more defensible if the information documented by nurses had been conveyed to all healthcare providers, Cerniglia-Lowensen offers.

“The EP still did all the right things,” she says. “He got an ECG, evaluated the patient, and really believed the problem was gastric, as did the gastroenterologist.” But the plaintiff experts made an issue of the information that wasn’t shared between the providers.

“The difficulty becomes that memories fade,” Cerniglia-Lowensen adds. The EP could not say with certainty whether he was aware of the nurses’ concerns at the time of the ED visit. But the EP acknowledged it was not his routine to go through the EMR to discover what the nurses had charted. “The EP said it was just too cumbersome and not practical,” Cerniglia-Lowensen says.

This admission, that the EP found it difficult to find the nursing notes in the EMR, and that he didn’t review those notes routinely, was a tough hurdle for the defense. “It is a challenge for physicians to hunt through the EMR to elicit the information. In a busy ER, that is sometimes one of the things that doesn’t occur,” Cerniglia-Lowensen says.

Ideally, ED charts include documentation such as “Spoke with Nurse Smith. Reviewed nursing notes.” If such documentation is absent from the medical record, the plaintiff attorney can argue the event never happened. “This suggests that there was a data source that was not utilized in arriving at the differential diagnosis,” Cerniglia-Lowensen says.

Nursing notes became an issue in another well-known malpractice case involving a 42-year-old man who presented to an ED with shoulder strain. The patient actually had a necrotic infection that went undiagnosed. The case went to trial, and the defense prevailed. “In the end, the plaintiff was out-experted. The defense attorney had multiple national experts, and plaintiff had multiple local experts, which weren’t enough,” says Michael B. Weinstock, MD, associate program director of Adena Emergency Medicine Residency and director of medical education and research at Adena Health System.

However, the defense was complicated by the fact that nursing documentation was apparently never seen by the EP.

“I wish that the EP would have read the chief complaint and commented on it. That is the one thing about this case that could have been a game-changer,” Weinstock laments.

The nursing notes indicated that the patient had a fever. “If you have shoulder strain and fever, you’ve got to start looking for reasons for the fever, including infection,” Weinstock says.

On the stand, the EP was asked to read the nursing documentation aloud, which stated that the patient presented with left shoulder pain, fever, and chills.

“You don’t have to agree with the chief complaint. But you do have to acknowledge it and comment on it,” Weinstock notes.

For example, nursing documentation sometimes indicates that an infant or small child is “lethargic.” If the EP disagrees, this should be indicated in the chart: “The note has been read, appreciated, and discussed further with the family. They stated that the child had a longer nap than usual and not as active as usual. Patient is not currently lethargic and is active and playing.”

Inconsistencies between what the ED nurses document and what the EP observes while evaluating the patient are “easy to address,” Weinstock says. “But we can only do that if we realize something’s been written in the nursing notes.”

Weinstock recommends adding a “hard stop” to ED medical decision-making. “The idea is to monitor your own decision-making process and consider whether it was subject to some kind of bias,” Weinstock says. After reviewing all the information, including nursing notes, the EP can ask, “Would I feel comfortable justifying my decision-making to the patient, family, or a jury if there is a bad outcome?”

If the answer is ‘no,’ it means that either additional data are needed, possibly including a need to review the nursing notes, or the EP needs to reconsider his or her decision-making.

“Why wait for the patient to come back with a bad outcome?” Weinstock asks. “Why not do it before they leave, and change your course to decrease the risk of a bad outcome?”

Michelle Myers Glower, MSN, RN, NEA-BC, a Bradenton, FL-based legal nurse consultant, has reviewed many ED charts in which the EP indicated that the nursing notes were reviewed. “I applaud all physicians who document they read them. However, I know when they really did read the notes,” Myers Glower says. “I look for evidence in the records that speaks to this.”

Myers Glower looks for:

  • whether the notes and orders reflect the patient’s chief complaint;
  • what information the nurse shared with the EP;
  • whether the EP’s notes reflect any abnormal findings noted by nurses;
  • whether ED nursing notes indicate that any abnormal findings were conveyed to the EP.

ED nurses should know where to look for the EP’s documentation, and vice versa. “Do not just look in one section,” Myers Glower advises. “You may need to scroll to particular sections addressing the issues at hand to review critical pieces of information.”

In the fast-paced ED setting where nurses and physicians work closely, much communication is non-verbal and undocumented. “Two years later, it can be difficult to prove the providers were aware of various issues, especially if not recorded in the patient’s chart,” says Paul C. Kuhnel, JD, an attorney in the Roanoke, VA office of LeClair Ryan.


  • Joan Cerniglia-Lowensen, JD, Attorney, Pessin Katz Law, Towson, MD. Phone: (410) 339-6753. Email:
  • Paul C. Kuhnel, JD, Attorney, LeClairRyan, Roanoke, VA. Phone: (540) 510-3051. Email:
  • Michelle Myers Glower, MSN, RN, NEA-BC, Legal Nurse Consultant, Bradenton, FL. Email:
  • Michael B. Weinstock, MD, Associate Program Director, Adena Emergency Medicine Residency; Director, Medical Education and Research, Adena Health System; Professor, Emergency Medicine, Department of Emergency Medicine, Wexner Medical Center at The Ohio State University. Phone: (614) 507-6111. Email: