An ED patient was prescribed antibiotics but never filled the prescription. A few days later, the patient returned to the ED, septic. The patient sued, alleging that the EP should have admitted the patient for further evaluation.

“Even though the patient should have taken the antibiotic prescribed at the first ED visit, it would be difficult to demonstrate that negligence was related to the ED physician failing to admit the patient for further work up,” says Paul C. Kuhnel, JD, an attorney in the Roanoke, VA, office of LeClairRyan.

This makes it easier for the EP to claim that the plaintiff failed to mitigate her damages. “Comparative negligence is available in many jurisdictions. Failure to mitigate damages, a close cousin to contributory negligence, is also available,” Kuhnel adds.

Contributory negligence, in those jurisdictions that recognize it, can be difficult to demonstrate. This is because the patient’s negligence must occur at or about the same time as the physician’s alleged negligence. The difficulty of arguing that the patient is at fault for failing to tell the EP an important piece of history is another obstacle.

“In dealing with healthcare professionals versus a patient who may not have education beyond high school, the jury could likely conclude the physician should have elicited that history from the patient,” Kuhnel offers.

Other malpractice claims have involved patients discharged from the ED with an incorrect diagnosis, such as gastroenteritis. “The ED providers do not discuss with the patient what specific symptoms the patient should look out for in order to return to the ED,” Kuhnel explains. Typically, the patient is just handed a generic discharge summary that tells him or her to return to the ED if symptoms worsen. “Often, the patient does not return in a timely manner,” Kuhnel notes.

It is “a must” that ED patients sign a document stating that they received discharge instructions, says William C. Gerard, MD, MMM, CPE, FACEP, chairman and professional director of emergency services at Palmetto Health Richland in Columbia, SC.

This document and the instructions themselves should be in the medical record. But this is not enough.

“It should be documented that the patient was given verbal instructions and that they understood them, even repeated them back,” Gerard says.

The same applies to any family members or others present. “Documentation that an opportunity was provided for additional questions and that at the end of the encounter all were satisfied puts the provider on solid ground should things go awry,” Gerard advises.

Gerard says that personalizing instructions generally provides more protection to healthcare workers.

At first glance, discharge instructions might appear extremely detailed, covering every possible scenario. Things quickly go wrong for the ED defense team if it is revealed the information was simply cut and pasted into the ED chart.

“Sincere instructions that turn out to be macros can cause one to question authenticity and whether it was performed at all,” Gerard warns.

Some evidence suggests that patients are better able to recall videotaped discharge instructions that they viewed while in the ED.1 “This never really caught on; but recently, a new trend is developing,” Gerard notes.

Some EDs are recording the patient’s discharge instructions on handheld devices, then storing them on the electronic medical record patient portal so patients can access them anytime, even on their smartphones. Documenting that this process was used can be legally protective.

“It shows care, compassion, and personalized involvement of the clinician and the patient,” Gerard says.


1. Wood EB, Harrison G, Trickey A, et al. Evidence-based practice: Video-discharge instructions in the pediatric emergency department. J Emerg Nurs 2017;43:316-321.