Effective communication practices can mitigate malpractice risk in ED settings.

  • Keep patients updated on the ED course;
  • Ensure patients and family are well-informed prior to leaving the ED;
  • Encourage patients and family to vent frustration and anger;
  • Avoid assuming bad outcomes occurred because of an error.

Often, ED providers do not receive notice of a malpractice suit against them until months after the patient (now plaintiff) presented. Sometimes, providers cannot even recall the case at all. But there also are ED visits in which it is immediately clear that something has gone wrong.

“The ER is very emotional and stressful for most individuals. Not knowing what is happening leads to further frustrations and lack of confidence in patient care,” says Linda Mueller, MD, an EP at Edward Hospital in Naperville, IL.

Many times, poor communication is the underlying issue. Staff at the Edward Hospital ED take the following steps if a patient or family is angry:

  • Address the patient or family in a polite, respectful manner, and provide updates on the ED course. “This will typically de-escalate most situations,” Mueller notes.
  • If the patient and family are still upset, the ED charge nurse gets involved and attempts to de-escalate the situation.
  • If unsuccessful, patients are encouraged to contact the hospital’s patient experience department for resolution. “The most important factor is that the patient has someone in a position of authority listen to their concerns and correct the situation to the best of their ability,” Mueller adds.

The ED charge nurse puts these cases into an end-of-shift report for senior administration to review. “They do so regardless of whether they were successful in de-escalating the situation,” Mueller explains.

Sometimes, litigation arises because a patient leaves the ED without clearly understanding the cause of his or her symptoms. This can happen if the patient is discharged home or is admitted to a particular service. “ED physicians can sometimes be tempted to stabilize a patient and discharge the patient to another specialist in the hospital,” says Justin S. Greenfelder, JD, partner at Canton, OH-based Buckingham, Doolittle & Burroughs.

This will not insulate an ED physician from a lawsuit if the patient experiences an adverse outcome and later alleges that there was a delay in diagnosis. One such case involved a patient with flu-like symptoms, the cause of which went unexplained when the patient’s case was turned over to a hospitalist, who took over the patient’s care.

“The ED physician did not communicate his findings to the patient’s family, who were led to believe that the patient simply had the flu,” Greenfelder reports. The patient decompensated quickly and died a few days later. “The ED physicians were named as defendants under a delay-in-diagnosis theory,” Greenfelder says. In fact, the EPs had provided appropriate care. However, because of poor communication, the family believed the EPs had misdiagnosed the patient.

ED providers might be tempted to apologize if they believe an error contributed to a poor outcome, believing the apology cannot be used against them if someone sues. It is true that some states have created statutes that prohibit plaintiffs from using a physician’s statement of apology as an admission of fault. However, this does not necessarily mean the EP’s statements to the patient are going to be inadmissible. “The case law interpreting these statutes is inconsistent,” Greenfelder explains.

Some courts have required specific “apology” language to exclude the statements. Others interpret the statute more broadly, excluding statements showing sympathy or commiseration. “Plaintiff’s attorneys will often use a physician’s well-meaning statements and twist them to infer an admission of fault,” Greenfelder says.

As for what EPs can do in the moment to reduce risks, “it depends on the situation,” Greenfelder says. If an unexpected adverse event occurs and the family is visibly upset, it may be best to inform risk management or administration so they can intervene and give proper guidance. “As a best practice approach, it is typically advisable to refrain from any unnecessary or prolonged contact with a patient’s family after an adverse event has occurred,” Greenfelder advises.

There is something else EPs can do to reduce legal risks. “The simplest and most effective thing a provider can do is simply to listen,” says Beth Norton, JD, an attorney in the Richmond, VA, office of Hancock, Daniel and Johnson. Usually, an apology is not what a family member really wants when things do not as go planned in the ED. “It’s to be heard and to have his or her feelings recognized and acknowledged,” Norton explains.

This does not always come easy for most ED providers. Many find it hard to allow patients to vent frustration and anger without becoming defensive. “But it’s the most effective — and often the only — way to assuage anger before that anger becomes the basis for a malpractice complaint,” Norton says.

The ED provider does not need to agree with the patient’s or family member’s version of the events. “But arguing with them about it will only fuel their negative feelings,” Norton cautions. Empathy is a more effective approach. Norton says there is no risk in sincerely saying, “I understand how frustrated (or angry) you are. I’m very sorry that you’re going through this.”

“Resisting the temptation to defend yourself in the ED may lessen the chances you’ll have to defend yourself later in court,” Norton adds.

Giving patients or family a chance to vent can cool extremely negative emotions. In turn, this reduces the risk of litigation. Still, there are always exceptions. Sometimes, the patient or family remain angry despite the efforts of the ED providers. “If you sense he or she harbors significant resentment toward you or the facility, that’s probably a good time to contact your risk manager and/or administrator,” Norton says.