Shared decision-making can mitigate malpractice risks in the ED setting, according to recent research. EPs should:

  • involve patients proactively;
  • be transparent about uncertainty;
  • explain all options, even if one seems more reasonable to the EP.

Words to the effect of “we have a decision to make” that are said to ED patients routinely can decrease malpractice risks, suggest the results of recent research.1

“A lot of lawsuits are about poor communication or the perception of poor communication, even when there is no medical error,” says Elizabeth M. Schoenfeld, MD, MS, the study’s lead author and an assistant professor in the department of emergency medicine at University of Massachusetts Medical School-Baystate.

Seeking to learn more about the medical-legal ramifications of shared decision-making for EDs, researchers randomly split 804 participants into three groups. All read a conversation and were asked to imagine they had been part of that conversation and then experienced an adverse outcome (a missed diagnosis of appendicitis). One group’s conversation included no shared decision-making. The other two groups’ conversations included either brief or thorough shared decision-making. Both those groups were 80% less likely to report a plan to contact a lawyer than those who were not exposed to shared decision-making.

Within the “no shared decision-making” group, 41% of respondents reported they were “somewhat” or “very likely” to contact a lawyer to discuss litigation. These percentages were 12% and 11% for the “brief” and “thorough” shared decision-making groups, respectively.

The authors of a previous study found that EPs were split on their views of how shared decision-making would affect their own legal risks.2 Some EPs believed patients would be less likely to blame the EP. “A few said that if there is an error and a bad outcome, they were going to get sued either way,” Schoenfeld notes.

Shared decision-making could help EPs cut down on defensive ordering of diagnostic tests. “One end of the spectrum is that doing every test is legally protective,” Schoenfeld offers. “We all do a lot of low-yield testing for various reasons.” Her current work with focus groups indicates that some patients believe undergoing a CT scan is an indication the EP is taking them seriously. Once patients comprehend their low risk, combined with possible negative consequences of the test, some will change their minds about testing.

“If the patient is OK with that small risk, then together we have made that decision,” Schoenfeld says. “But some EPs are just not comfortable with this, and do all the tests anyway.”

Of 661 adult ED patients surveyed at three academic medical centers, most wanted some degree of involvement in decision-making but were not always comfortable saying so. About half of those surveyed reported they would wait for an EP to ask them to be involved.3 “More proactive engagement of patients by clinicians is often needed,” Schoenfeld adds. Often, shared decision-making is thought of as useful only if there is more than one medically reasonable option. “But it can be done even when just one option is appropriate,” Schoenfeld says. The EP can explain all options and why only one is reasonable. The EP has reached a decision already, but this allows the patient to agree with the decision.

“We are not always good at explaining the reasons behind our decisions,” Schoenfeld acknowledges. “EPs’ medical decision-making is often the crux of malpractice litigation.”

A shared decision-making conversation could stop a bad outcome simply because the EP learns more information. For example, when tests so far have returned negative and a patient does not exhibit any cardiac risk factors, an EP might explain she is leaning away from admission. However, the patient may interject that two siblings died of heart attacks in their 40s. “Sometimes, decisions do change when you get more input,” Schoenfeld says.

Schoenfeld would like to see EPs make a habit of discussing their reasoning every step of the way, as by saying, “We have some choices here. Based on what you are telling me, it would make sense to do this. This is what I’m thinking and why. Is that OK with you?”

EPs are “motivated to rule things out with absolute certainty,” Schoenfeld explains. “The problem is our aim for absolute certainty hurts people.” No EP wants a patient to get hurt because something was missed, but shared decision-making could influence EPs to be more tolerant of some degree of risk. For some patients, says Schoenfeld, “a 2% chance of missing something, which is a 98% chance that everything is fine, may be acceptable.”

EPs may overestimate their own risk of a particular patient filing a lawsuit, Schoenfeld says. “Our lifetime risk of being sued is pretty high, but risk per patient is quite low.”

Most EPs are reluctant to acknowledge uncertainty. “This is super challenging, but for the most part, we should share uncertainty. We just have to get better at doing it,” Schoenfeld offers.

The EP might say: “If you were 10 years older, I’d definitely admit you. And if you didn’t have high blood pressure, I’d send you home with no hesitation. But you’re somewhere in the middle, so let’s talk about it.” By weighing the pros and cons of admission vs. discharge home, the patient shoulders some responsibility for the decision.

“With the patient agreeing with you, you have just solved a problem together,” Schoenfeld says.


  1. Schoenfeld EM, Mader S, Houghton CJ, et al. The effect of shared decision-making on patients’ likelihood of filing a complaint or lawsuit: A simulation study. Ann Emerg Med. In Press. Available at: https://bit.ly/2QoNgB6. Accessed Jan. 4, 2019.
  2. Schoenfeld EM, Goff SL, Elia TR, et al. The physician-as-stakeholder: An exploratory qualitative analysis of physicians’ motivations for using shared decision making in the emergency department. Acad Emerg Med 2016;23:1417-1427.
  3. Schoenfeld EM, Kanzaria HK, Quigley DD, et al. Patient preferences regarding shared decision-making in the emergency department: Findings from a multisite survey. Acad Emerg Med 2018;25:1118-1128.