About one-third of malpractice allegations in the ED resulted in permanent injuries. Of those cases, 38% involved grave injury or death, according to the authors of a recent analysis of 1,362 closed medical professional liability claims from 2014 to 2018.1

“That was probably the most surprising finding,” says Solveig Dittmann, RN, BA, BSN, CPHRM, one of the report’s co-authors and a senior risk specialist at Coverys, a Boston-based provider of medical professional liability insurance. Other key findings:

  • The ED was the fourth-highest location to trigger claims (after surgery, physician offices, and inpatient units);
  • Overall, 13% of all malpractice claims involved ED care;
  • Cardiac or vascular illnesses were the most common conditions identified in ED claims (23%; followed by infection at 18%, neurologic at 8%, medication-related at 7%, fracture/dislocations at 7%, gastrointestinal-related conditions at 6%, and psychiatric conditions/suicide at 6%);
  • Fifty-six percent of ED malpractice claims included allegations of diagnostic error.

“There is a real risk in the ED environment to not only to make an inaccurate diagnosis, but to have one result in the death of a patient,” Dittmann says.

Sometimes, emergency physicians (EPs) discharge patients after ruling out only the most obvious possible cause of symptoms without probing further. Perhaps the best-known example is the actor John Ritter. He presented to an ED complaining of heartburn symptoms, but staff ruled out a cardiac event. “He ended up back in the ED with a dissecting thoracic aorta. They took him to surgery, but were unable to save him,” Dittmann recalls.

To guard against misdiagnosing a life-threatening condition, Dittmann and colleagues recommended EDs use clinical decision support tools (e.g., practice guidelines for high-risk presentations). “These tools assist providers in addressing all the pertinent medical history and current symptoms to reach an accurate diagnosis,” says Dittmann. The analysis revealed several more important findings:

Of the diagnosis-related ED claims, 44% alleged some type of failure during the initial history and physical evaluation. “The reason the ED assessment is such a problem relates to the pace and pressure,” Dittmann explains.

There is not always time for a good assessment. Some ED patients arrive unconscious with no one to provide a history and no previous medical records available. From there, Dittmann says EPs are “faced with a situation where you have to make diagnosis completely devoid of having a patient history.”

Many claims involved communication breakdowns of some sort. Not all EDs have an established way to hand off patients to the next shift. “If information isn’t conveyed to the next provider, everything can fall apart,” Dittmann cautions.

Some claims alleged no one was ever told of abnormal radiological or lab findings that came back after discharge. “Many EDs lack a defined process to ensure the information gets conveyed to the patient or the primary care physician,” Dittmann says.

In one case, a patient presented to an ED with an infection. Blood culture results were not communicated, revealing that a different antibiotic was needed. That patient returned to the ED severely septic.

Other cases with a similar fact pattern involved X-ray overreads performed the following day. These showed a fracture that was not caught until after the patient left the ED. “There are numerous instances where the medical record shows the patient was never informed of a fracture,” Dittmann laments.

The situation is far more serious if there is an initial negative reading of a CT of the brain, but the overread reveals an intracranial hemorrhage. Ideally, the radiologist providing the initial read has access to the complete medical record, including the patient’s complaints, symptoms, and the nature of the injury. “It might affect his or her interpretation of the CT scan,” Dittmann says.

Other claims involved incidental findings unrelated to the reason the patient came to the ED. In one case, a CT scan showed appendicitis, which required an immediate appendectomy. It also showed a kidney lesion, which the patient was not told about. “Three years later, a CT scan revealed renal cell cancer, which had been noted on the very first radiology report,” Dittmann adds.

Good communication needs to happen if someone discovers incidental findings. According to Dittmann, one possible solution is a system in which all overread studies are sent to an inbox of a designated ED provider automatically. This provider should be someone who is in the department at the time the tests come back. “They are the ones responsible to ensure follow-up happens,” Dittmann notes.

Another possible solution is to designate a full-time nurse or nurse practitioner (NP) whose specific role is to follow up on test results of discharged ED patients.

Patients with frequent ED visits underwent a less-than-thorough evaluation. This can cloud the ED provider’s decision-making process. “Bias sometimes interferes. Sometimes, providers have a preconceived notion about a particular patient,” Dittmann explains.

EPs jump to a conclusion earlier than they should and do not perform a complete evaluation. One such case involved a 56-year-old woman with a severe anxiety disorder and multiple previous visits for shortness of breath and rapid pulse. She had been evaluated many times to rule out a heart attack. Each time, she was diagnosed with panic attacks, treated with lorazepam, and discharged.

“The last time she came in to the ED with the same symptoms, the department was very busy,” Dittmann says. The EP briefly evaluated the patient, prescribed a sedative, and discharged her.

“Four hours later, she arrived via ambulance in full cardiac arrest and ultimately died of a massive myocardial infarction,” Dittmann reports.

NPs or physician assistants (PAs) diagnosed patients without consulting the supervising EP. “There really have to be guidelines in place for when those particular providers must consult with an EP on the diagnosis and plan of care,” Dittmann says.

One jury returned a $5 million verdict for failure to order an arterial ultrasound in an ED patient who ultimately required amputation. In that case, the PA failed to order diagnostic testing to determine if a patient’s diminished pulse was caused by a partial arterial blockage.

“The PA had a complex patient. He did consult the physician. But the physician, in this case, should have seen the patient before agreeing to the PA’s plan of care,” Dittmann offers.

Thirty-six percent of claims involved medications, either the wrong drug or wrong dose. Forty-nine percent of all medication-related allegations involved antibiotics, opioids, or anticoagulants. One ED patient received an excessive dose of opioids, resulting in cardiac arrest; the patient required resuscitation.

In another episode, a patient with a pulmonary embolism received a dose of heparin that was too low, and later died of a blood clot in the lung. Still another patient with an arm wound was not prescribed antibiotics, ending up with a severe infection and permanent disability.

In other claims, the wrong medication was administered. Barcode scanning, says Dittmann, is “a really fabulous risk strategy, but one which is still not in all EDs.” Not surprisingly, cost is the main obstacle to its implementation. “But one major adverse medication error would be enough to justify the investment of that kind of safety technology,” Dittmann argues.

If a medication error happens, it is important to know why. Did an ED nurse fail to barcode scan the medication order? Did a patient experience an adverse reaction because no one ever addressed medication reconciliation? “Use occurrence-reporting data to identify not only medications given in error but the reason behind the error,” Dittmann suggests.

Some EDs employ a pharmacist whose sole responsibility is to provide medication reconciliation for ED patients. This is uncommon at community hospitals and critical access hospitals — and cost is not the only obstacle. “There aren’t that many pharmacists available in smaller communities,” Dittmann observes.

Some patients deteriorated after they were triaged as nonurgent initially. “The worst-case scenario is that not only does the patient wait several hours, but nobody notices that they deteriorated while waiting,” Dittmann says.

One claim alleged negligent ED triage. In that case, a man’s ECG performed during transport indicated a right bundle branch block and sinus tachycardia. Yet, the ED triage nurse deemed him “nonurgent.” An hour later, the patient still had not been evaluated by an EP. “The patient went into cardiac arrest, a code was called, but he was unable to be resuscitated,” Dittmann says.

Dittmann says the best way to guard against this nightmarish scenario is to put the waiting area under direct observation by ED personnel, and to mandate a standard practice to check on patients every 15 minutes: “Triage is not a one-time thing; it’s an ongoing process.”


  1. Gibson T, Burke A, Dittmann S, Small M. Emergency department risks: Through the lens of liability claims. Coverys, June 24, 2019. Available at: http://bit.ly/2KhQtl5. Accessed Aug. 1, 2019.