Poor communication in the ED is an underlying cause of many malpractice lawsuits, according to the authors of a recent analysis. Risk-reducing tactics include:

  • conveying uncertainty to patients, if appropriate;
  • ensuring incidental findings are communicated;
  • auditing compliance with policies on critical findings.

A new analysis reveals the current state of malpractice in emergency medicine and the importance of good communication in the ED setting.1

The existing body of evidence on malpractice risks specific to the ED made it difficult to identify cohesive themes. To determine the best risk-reducing methods, researchers analyzed 52 studies on EDs and malpractice. “We highlight what might lead to lawsuits, and how to prevent them,” says Martin Huecker, MD, the study’s lead author and a research director at the University of Louisville. Two key findings:

Specific diagnoses are linked to ED lawsuits consistently. The high-risk list includes missed myocardial infarction (MI), missed fractures or foreign bodies, appendicitis, wounds, intracranial bleeding, aortic aneurysm, and pediatric meningitis. “Most physicians appreciate the risks of missed MI and appendicitis. Missed fractures and wound infections may be less well-known,” Huecker explains.

ED patients who leave against medical advice (AMA) are high risk persistently. “This is important to highlight, as many believe they are relieved of risk when someone signs out AMA,” Huecker says.

Based on the findings, the researchers identified specific behaviors that appear to prevent litigation.

“Most are common sense. But it sometimes helps to be reminded of these evidence-based strategies to mitigate risk,” Huecker says. These behaviors include constructive communication, intelligent documentation, use of clinical practice guidelines, careful management of AMA patients, and ensuring follow-up for diagnostic studies ordered while in the ED.

Of course, these behaviors will not always protect emergency physicians (EPs) from litigation. The only characteristics of EPs that seem to predict lawsuits are years in practice and numbers of patients seen, according to the authors of another recent study.2 “It can and will happen to all of us,” Huecker notes.

Communication breakdowns appear to be even more predictive of malpractice litigation than injury. Considering this important finding, EPs should develop a “real interpersonal relationship with the patient, more than a business transaction,” Huecker offers.

Most ED patients “want certainty in the diagnosis,” says Mark F. Olivier, MD, FACEP, FAAFP, risk manager medical advisor at Lafayette, LA-based Schumacher Clinical Partners. This is not always possible in the ED, especially with conditions such as nonspecific abdominal pain. When uncertainty exists in a patient deemed stable for discharge, Olivier says, “discharge instructions should include red flag symptoms indicating a need to seek immediate medical attention or return to the ED.”

Alan Lembitz, MD, chief medical officer at COPIC, a Denver-based medical professional liability insurance provider, recommends these three practices: “hard stops” to ensure incidental findings are communicated, auditing ED policies to ensure tracking and follow-up of all critical findings, and reconciliation of radiologic findings (if the final report is not ready at time the patient is discharged).

“Communication issues are one of the causative factors in a majority of ED malpractice claims,” Lembitz notes, offering some recent examples:

An ED nurse documented a patient’s vital signs at discharge, but did not alert the EP of a key abnormality.

The lab returned a critical positive blood culture 24 hours after a pediatric patient had been discharged to outpatient care. No one followed up with the patient, who died of sepsis 18 hours later. There was no process in this ED to ensure that all critical results from prior visits are reconciled. “Their defense is that they assumed the outpatient pediatrician would follow up,” Lembitz recalls.

A CT scan revealed appendicitis and an incidental renal lesion. The patient was admitted with a successful appendectomy but was found to have metastatic renal cancer 20 months later. Neither the surgeon nor the EP told the patient about the worrisome renal lesion. “Each assumed the other had or would do so,” Lembitz reports.

During a shift change, the outgoing EP told the incoming EP that a patient was ready to be discharged. The patient had presented with weakness, epigastric discomfort, and fever, with chest X-ray results pending. The incoming EP discharged the patient without an examination after reviewing the chest X-ray and seeing no infiltrate. “The patient returned to the ED four days later septic with a necrotic bowel. A review of the chest X-ray showed a free air stripe under the right hemidiaphragm,” Lembitz says.

Bad rapport, inadequate education, and language barriers prevent effective communication between EPs and patients. “This can lead to anger, dissatisfaction, and litigation,” Olivier says, noting that breakdowns can occur “anywhere in the ED process.” He often sees these scenarios come up in malpractice claims:

  • An incomplete EMS report regarding the mechanism of injury of a motor vehicle accident, which causes the ED provider to overlook something;
  • ED nurses document abnormal vital signs, which are not communicated verbally;
  • An EP fails to provide a complete report for an admitted patient, delaying treatment (especially problematic at night when the patient may not be seen until the following morning);
  • At shift change, the oncoming EP overlooks the findings;
  • Patients are not notified of X-ray discrepancies revealing incidental findings that require follow-up.

“A combined effort by all members of the ED team can help to avoid potential communication breakdowns in the ED process,” Olivier says.

Mamata Kene, MD, chief of medical legal affairs at Kaiser Permanente Fremont (CA) Medical Center, says poor communication among multiple providers caring for ED patients is a “substantial risk.” For instance, handoffs at change of shift are critical moments when key information needs to be passed on to ensure appropriate care and follow up. “Specifically, communicating outstanding test results and treatments that need to be addressed before a disposition decision is made is important,” Kene says.

EPs may fail to diagnose pneumonia because of a missing X-ray result or fail to administer tPA because they were not told of a stroke patient’s “last known normal” time. In one recent case, an EP ordered antibiotics for sinusitis after a discharge order was placed, but it was not communicated to the ED nurse. The patient never received the prescription, and developed an epidural abscess from extension of frontal sinusitis. “The failure to treat resulted in significant disease and morbidity,” Kene notes.

Kene says practitioners can reduce the risk of miscommunication by fostering an ED culture that encourages and values teamwork and communication between all providers. It also is important to create a structured bedside handoff procedure that includes reviewing pertinent clinical details as well as outstanding tests and treatment decisions.

Hospital processes also come into play. One recent malpractice lawsuit centered on a hospital’s failure to communicate relevant policies regarding lab testing to a newly hired EP. A pregnant patient presented to the ED with severe preeclampsia, shortness of breath, hypotension, and tachycardia.

“The EP’s instinct was that the patient was suffering from complications of severe preeclampsia,” says Keith C. Volpi, JD, an attorney at Polsinelli in Kansas City, MO. However, the EP recognized that the patient’s presentation was consistent with an internal bleed and wanted to rule that out.

“His first step was to get a CBC to evaluate counts and determine whether they were consistent with acute blood loss,” Volpi notes.

At the EP’s previous hospital, every order from the ED was treated as “stat,” regardless of whether it was specifically designated as such in the electronic medical record (EMR). Based on that assumption, the EP did not identify this patient’s CBC order as “stat,” so the order was prioritized as routine. When the CBC results came back 90 minutes later, it was clear that the patient was losing blood and an emergency surgery was necessary. The plaintiff attorney alleged that the surgery could have been prevented, or at least minimized, had the acute bleed been identified an hour earlier. “Perhaps the EP should have done his homework and learned that all orders from the ED were not treated as stat unless designated as such,” Volpi says.

The hospital also could have made its policy clear to new providers. “Either way, this easily preventable breakdown in communication led to exposure and liability for the EP,” Volpi adds.

Lembitz says it is important to recognize that ED communication can be synchronous (voice or face-to-face) or asynchronous (entered in the EMR, texted, or faxed). The risk of asynchronous communication is that it is easy to assume such communication actually has been transmitted, and that a timely response will happen. As the aforementioned malpractice cases make abundantly clear, this is a dangerous assumption to make on both counts.

“Delays are inherent to the process if the closed loop communication doesn’t occur,” Lembitz warns.


  1. Ferguson B, Geralds J, Petrey J, Huecker M. Malpractice in emergency medicine-A review of risk and mitigation practices for the emergency medicine provider. J Emerg Med 2018;55:659-665.
  2. Carlson JN, Foster KM, Pines JM, et al. Provider and practice factors associated with emergency physicians’ being named in a malpractice claim. Ann Emerg Med 2018;71:157-164.e4.