About one in five ED malpractice claims include the allegations that the EP failed to obtain a consult. Documentation of these items is helpful to the defense:

A thorough ED evaluation;

What was communicated to the consultant regarding the urgency of the case;

Specifics on symptoms and complaints at the time the patient presented to the ED.

Some patients need to be evaluated by a specialist at the time of the ED visit. However, for whatever reason, the evaluation does not happen.

It turns out that a significant number of ED claims involve this scenario — about one in five, according to an analysis of closed malpractice claims.1 There are some relevant case examples:

A patient with an eye injury was not referred to an ophthalmologist. The emergency physician (EP) failed to correctly diagnose the patient with a corneal ulcer that required immediate treatment. Later, a second EP correctly diagnosed the patient and referred him to an ophthalmologist. “The incorrect diagnosis led to a delay in treatment by an ophthalmologist,” says Darrell Ranum, JD, CPHRM, vice president of the department of patient safety and risk management at The Doctors Company.

The plaintiff attorney alleged that if the eye injury had been diagnosed correctly, the patient would have been referred to the appropriate specialist. “The patient, therefore, would have been treated immediately and would not have suffered a corneal ulcer that required corneal transplants,” Ranum explains.

A cardiologist was not called for a stat review of an ECG. The patient presented with chest pain, but the initial set of cardiac enzymes were normal. “There were some changes to the ECG. A second set of cardiac enzymes were ordered later than protocol required,” Ranum says.

The cardiac enzymes were elevated. The patient was admitted to the hospital under the care of a hospitalist, but the patient remained in the ED. Neither the EP nor the hospitalist contacted a cardiologist until the patient was transferred to an inpatient unit, delaying necessary interventions. “The patient suffered extensive cardiac damage due to the delay. It was determined to be substandard care,” Ranum reports.

A patient with an upper respiratory illness was not referred to a pulmonologist. The patient presented to the ED with fever, body aches, vomiting, and chest pain. A rapid flu swab test was negative, but a chest X-ray showed COPD with right lower lobe pneumonia.

After receiving medications, the patient felt better and was discharged home. Shortly after, the patient returned to the ED, was diagnosed with bilateral pneumonia, and was admitted to the hospital. “His condition continued to deteriorate. The family insisted on transferring the patient to a larger hospital,” Ranum says.

There, the man was intubated for respiratory failure. The patient died a short time later. “The failure to consult with appropriate specialists may have caused the patient’s death and was found to be below the standard of care,” Ranum notes.

A patient with a bowel obstruction was not referred to a surgeon until the patient was severely septic. A patient with shortness of breath, chest pain, abdominal pain, and constipation presented to the ED and was discharged with laxatives. The man soon returned to the ED with worsening symptoms.

“Multiple tests, including X-rays of the small bowel, showed dilated loops and air in the abdomen, which is an ominous sign,” Ranum says. The patient arrested and was resuscitated. He was taken to surgery to remove ischemic portions of his small bowel. “The patient was septic and experienced multiorgan failure. He expired,” Ranum says. The lawsuit alleged the EP failed to diagnose a bowel obstruction and failed to refer the patient to a surgeon.

A man with stroke-like symptoms was not referred to a neurologist until the patient suffered permanent paralysis. This patient presented to an ED with garbled speech, headache, elevated blood pressure, and difficulty walking. The patient’s glucose level was high. He was diagnosed with transient ischemic attack and diabetes. A CT scan was negative for intracranial hemorrhage.

After three hours, a neurologist finally was consulted. He diagnosed stroke, but by that time the timeframe to give tPA had run out. “The patient suffered permanent disabilities due to the delay in diagnosis of stroke and referral to a neurologist,” Ranum says.

Malpractice claims alleging the EP should have involved a consultant “are always based on looking back,” says Rodney K. Adams, JD, a visiting assistant professor at the University of Richmond (VA) School of Law. The questions become: Why did the EP not obtain a cardiac consult for the chest pain patient? Why did no one call a neurologist for a possible stroke? Why did no one summon a neurosurgeon for a back pain patient? Why did no one consult a surgeon for abdominal pain?

“Unfortunately, an EP has to make such decisions for many patients each day,” Adams observes. The EP needs to decide whether a condition needs specialist care and, if so, how urgently? “Usually, the cases boil down to documentation,” Adams adds. In litigation, a few issues arise frequently:

Thoroughness of the ED evaluation. Adams defended an EP in a lawsuit involving a firefighter who reported back and leg pain after lifting a heavy person. The EP carefully documented a thorough neurological exam, and ordered a CT scan to rule out spinal cord compression.

“This exceeded the guidelines for back pain evaluation,” Adams notes. The EP even called the radiologist to discuss the CT scan interpretation. The plaintiff was later diagnosed with cauda equina syndrome. The resulting malpractice lawsuit alleged that a neurosurgeon should have been consulted at the time of the ED visit.

“The jury had no problem returning a verdict in favor of the emergency physician, despite the subsequent treating spine surgeon trying to lay all kinds of blame on him,” Adams recalls.

The timing of the consultant’s response. Sometimes, the EP calls a specialist, but the specialist decides not to come until later — sometimes, much later, or not at all. In these cases, who has the best documentation can determine which physician — the EP or the consultant — is held liable.

In one case, an intoxicated patient arrived with a cut to his buttock following a fight. The EP closed the wound, but the patient’s blood pressure fluctuated. “The patient was lethargic and combative at times,” Adams says.

Fluid resuscitation was initiated, and the EP called a surgeon to admit the patient to the ICU for observation. The surgeon agreed, but did not come to the hospital until four hours later. “The EP and the surgeon disagreed as to the sense of urgency conveyed in the phone call,” Adams says. Neither documented the contents of the conversation.

When the surgeon finally arrived, the patient was coding. Once resuscitated, the patient was immediately taken to the OR. “The surgeon explored the buttock wound but couldn’t control the bleeding,” Adams says. “Realizing that the injury was in the pelvis, he had to flip the patient and enter from the front.”

The internal iliac artery had been severed. “Several liters of blood were hidden in the pelvis. The patient didn’t survive,” Adams says. Despite the terrible outcome, a jury returned defense verdicts for both the EP and the surgeon. One reason was that the plaintiff attorney decided to file separate lawsuits against the defendants. “Thus, the potential conflict of the EP and the surgeon pointing the finger at each other was avoided in front of the jury,” Adams explains.

When called to testify in the trial of the other, each physician had far less at stake in defending his care. “Similarly, the defense counsel for the defendant on trial was able to argue more strongly as to the impact of the absent physician’s care since he wasn’t in the courtroom,” Adams adds.

Karen Clouse, JD, an attorney in the Columbus, OH, office of Bricker & Eckler, says these are the most common fact patterns in claims alleging failure to obtain a consult in the ED:

  • chest pain, where the cardiologist is either not called at all or not called stat;
  • head trauma that is considered minor by the EP, and no neurological consult is obtained;
  • abdominal pain not recognized as representing a surgical abdomen requiring prompt intervention.

The plaintiff will focus on the bad outcome that happened after the ED visit. The defense’s job is to draw attention to what happened at the time of the ED visit. “It is important to look at the patient’s symptoms and complaints when they presented to the ED,” Clouse says.

For instance, these kinds of questions become important for chest pain cases:

  • What type of chest pain did the patient report at presentation?
  • Did it resolve with a GI cocktail or with nitroglycerin?
  • Were serial cardiac labs and ECGs ordered? If so, were they abnormal? If they were not ordered, did the EP explain why not?

Not every chest pain patient will undergo a full cardiac workup. “But the ED physician needs to have testing and documentation to back up the decision not to call in a cardiologist,” Clouse stresses.

One malpractice case involved a 63-year-old woman with a history of abdominal pain and no bowel movement for four days. Bowel sounds were present in all four quadrants, and the abdomen was soft but tender to palpation. The patient was progressively tachycardic and hypertensive in the ED. A CT was obtained that showed pyelonephritis. “This was likely a missed read by the radiologist, who was not named,” Clouse offers.

The patient was admitted to her family physician without a surgeon in the ED seeing her. “Pain that was out of proportion to the findings should have been concerning but wasn’t picked up as such by the EP,” Clouse says.

The family physician saw the patient the next morning and consulted general surgery. By that time, the patient was in excruciating pain. “She was taken for exploratory laparotomy where she was found to have extensive necrosis of the small and large bowel,” Clouse reports. The patient died the following day. The plaintiff’s expert testified that the patient had occlusion of the superior mesenteric artery and would have survived with prompt surgical intervention. “In this case, the EP had a very wide differential diagnosis and may have been led astray in part by the CT report,” Clouse notes.

However, the reading of pyelonephritis probably was not consistent with the patient’s presentation and complaints. “This should have led to consultation with a surgeon or urologist, rather than routine admission to the primary care physician,” Clouse says.

ED patients may present with complaints that initially do not point to the correct diagnosis, such as gastric symptoms. “An astute ED physician should think: ‘Could this be cardiac related?’” says Kay M. Anderson, JD, an attorney in the Memphis, TN, office of Baker Donelson.

Without a cardiac workup, the patient probably will be discharged with instructions to follow up with the primary care physician, or he or she will be admitted, but on a general floor without cardiac telemetry. “There is no urgency, as this is a patient merely complaining about gastric upset and nothing else,” Anderson says. “Then, the patient is found dead in the morning having suffered a myocardial infarction.”

Unfortunately, lawsuits are filed with the benefit of hindsight. “This is a luxury the ED physician does not have. If there is even a small iota of question in your mind, consult,” Anderson advises.


  1. CRICO Strategies. Medical Malpractice in America. A 10-year assessment With Insights. Boston; 2019. Available at: http://bit.ly/2lG5m7W. Accessed Sept. 5, 2019.