ED malpractice claims decreased slightly in frequency over a 10-year period, comprising 8% of total claims, according to the authors of a recent analysis. Some issues that arise often in ED claims:

Failure to establish a differential diagnosis;

Failure to appreciate and reconcile relevant signs, symptoms, and test results;

Failure or delay in ordering diagnostic tests.

Emergency medicine malpractice claims have decreased slightly over the past decade, according to the authors of an analysis of closed claims from 2009-2018.1

The frequency of ED claims fluctuated somewhat from year to year. “This may be due to the small number of claims that we receive each year for emergency medicine physicians,” offers Darrell Ranum, JD, CPHRM, vice president of the department of patient safety and risk management at The Doctors Company.

A few findings on ED claims included in the analysis stand out:

  • About 8% of malpractice cases involved the ED setting. Of these, 54% were diagnosis-related; 49% involved a severe permanent injury or death;
  • In the hospital setting, 9% of claims emanated from the ED. This compares with 8% for labor and delivery, 6% for the ICU, 5% for radiology/imaging, and 4% for ambulatory or day surgery. “Emergency department claims were third in frequency behind operating rooms and patient rooms,” Ranum notes. Emergency medicine claims were more frequent than internal medicine and anesthesiology, but less frequent than obstetrics and general surgery;
  • As for who is named in claims involving ED care, it is the EP 84% of the time, the hospital 44% of the time, and other ED employees 2% of the time;
  • At least 10% of claims that named EPs involved selection and management of therapy (such as mismanagement of medical treatment or invasive procedures or failure to order medications);
  • A total of 76% of ED cases involved breakdowns in clinical judgment.

Patient assessment, selection and management of therapy, patient monitoring, failure to ensure patient safety, and conditions affecting the caregiver (such as heavy workload or understaffing) were common issues in these claims. “A majority of those cases tend to involve a missed diagnosis,” Ranum notes. “Those cases involve a higher-than-average injury severity.”

The malpractice analysis revealed there is progress regarding risk in the ED, but opportunities to improve remain, says Dana Siegal, RN, CPHRM, CPPS, director of patient safety for CRICO Strategies, which conducted the analysis. “We, in looking at malpractice claims, can see that there are still scenarios where we are not ordering the right tests, we are not following up on tests, we are discharging patients before we complete their assessment,” Siegal says.

Sometimes, ED patients are discharged appropriately, but no one follows up when additional information is available. In one case, an overread X-ray revealed a cervical spine fracture the following day — but the information never reached the discharged ED patient. EPs often do not become aware of such diagnostic failures until there is a lawsuit.

“The patient comes back on a different shift and the connection isn’t made. Or, the patient seeks care elsewhere, and the organization never gets to know it happened,” Siegal offers, adding that this is why an analysis of closed malpractice claims is so important for EDs. “The biggest vulnerability in diagnostic failure is getting the data and knowing it happened.”

What follows is a closer look at some issues identified in ED malpractice claims that were part of the CRICO analysis:

Triage failures. Claims involving inadequate triage represent just 1.1% of ED claims where hospitals were named as a defendant, and less than 1% for claims naming EPs. “When they do happen, it’s usually serious, and we missed something big,” Siegal says. (See sidebar box at bottom of this page for more information.)

Diagnostic failures. In 21% of claims against EPs, the plaintiff alleged failure to establish a differential diagnosis. Failure to appreciate and reconcile relevant signs, symptoms, and test results was alleged in 18% of claims that named EPs. Failure or delay in ordering diagnostic tests was another common allegation (included in 23% of claims naming EPs).

None of this is surprising to Siegal: “That’s what people are going to the ED for. They are going for a diagnosis, or to treat a known diagnosis that has complications of some kind.” Litigation centers on whether the EP gathered the right information, ordered the right tests, and drew the right conclusion. Sometimes, patients are poor historians; the EP may attempt to call a treating physician but never makes the connection. “Family history might have come into play, or some previous event the patient did not tell us about,” Siegal says.

The patient decompensates while in the ED. “The patient’s condition evolves before we actually realize what it is,” Siegal notes. The ED patient presents with signs of an impending myocardial infarction (MI) or serious infection, but nobody puts the entire picture together. “The nurse has a part of the story and the emergency physician has another, but those two stories don’t always come together in a timely manner,” Siegal notes.

Sometimes, EPs and ED nurses spend entire shifts crossing paths without ever verbally sharing what they see and hear. “Because we rely so heavily on the EMR, we really miss the opportunity to be huddling. We’ve missed the human interaction that triggers people to think outside the box in the urgency of emergency care,” Siegal laments. In this way, ED providers can miss important pieces of the clinical picture. “People have bits and pieces of the information,” Siegal adds. “But they don’t share it in a way that makes the story whole.”

Lack of resources for patients with psychiatric symptoms. “So many patients who land in the ED are dealing with depression, anxiety, and alcohol and drug issues,” Siegal notes. Often, psychiatric patients are boarded for long periods in the ED. This group of patients needs another level of care, but there are no resources available. “The struggle is moving them into a system that can care for them properly. They become boarders waiting for our weakened mental health resources to have a place for them,” Siegal explains.

Boarding ED patients waiting for an available inpatient bed. “The ICU nurses come down and do the assessment. But there’s no bed to move them to,” Siegal says. Confusion can occur over who is responsible for the patient — the EP or the attending — during this period.

“We have a diagnosis and we know the next level, but we can’t move them through the system,” says Siegal, adding that although this wreaks havoc with patient flow, it does not appear to be a major cause of malpractice lawsuits. “Interestingly, ED boarders are not producing the majority of malpractice claims. But they certainly produce some, and it is a burden on the system.”

ED boarding poses indirect risks to other ED patients. If there are two or three beds held up, says Siegal, “one might be the very bed that we might have moved the MI [patient] sitting in the waiting room into, had the bed become available.”

Premature discharge. Twelve percent of claims naming EPs alleged the patient was discharged too soon. “Perhaps we didn’t appreciate the findings of the acuteness we were seeing,” Siegal says.

Some ED claims in the analysis involved patients discharged home who went on to experience an acute event without anyone appreciating the urgency of the situation. “We don’t take their blood pressure and pulse again before they leave, and don’t appreciate that the pulse has increased or that the blood pressure has dropped,” Siegal observes.

Premature discharge, says Siegal, “is the outcome of a series of other things. It means we arrived at a diagnosis and determined we could manage it as a nonacute issue.” In hindsight, the true situation becomes clear: The patient has an MI at home or an infection evolves rapidly.

The resulting lawsuit alleges the EP should have waited for cardiac troponins to come back, should have performed an MRI while the patient still was in the ED, or should have obtained a cardiac consult. Instead, a decision was made to send the patient for these tests or consults the following day. Siegal says it is not enough to simply document discharge vital signs; changes must be acted on. “Are we comparing it to the admission vital signs and finding that everything looks good? Or, if not, are we having a new conversation?” Siegal asks.

Hand-offs at shift changes. Three percent of claims naming EPs involved the EP relying on a previous provider’s diagnosis. A typical scenario: The outgoing EP tells the oncoming EP that they are just waiting for one more lab to come back. If the lab is fine, the patient probably can go home. “You’ve already set up the next shift to kind of dismiss that patient,” Siegal notes. Even if the lab test does not quite fit the picture, the oncoming EP still might rely on the previous EP’s interpretation. The question, says Siegal, is, “Are providers going to reopen the query, or just rely on somebody else’s diagnosis?”

If a poor outcome happens to an ED patient, says Siegal, “the most important thing we can do is talk about it. We need to understand why things do fall through the cracks.”

Siegal would like to see EDs take the malpractice data in the CRICO report and consider whether it sounds like something that could happen in their own department. “Look at the past day, week, and month. Would you say, ‘Yeah, that could happen here,’” Siegal asks. “If so, think about what would stop it from happening.”

Too often, action is taken only after a terribly bad outcome. “Sadly, sometimes it takes one case to go really sour and hit an organization’s reputation that causes them to make the change, when data way earlier told them the vulnerability was real,” Siegal laments.

ED providers can tell hospital leaders about the issues they are seeing that expose patients and the organization to risk, but they cannot do it alone. “We need senior leaders and risk managers to say, ‘This is a vulnerability in our system, and we need to find the resources, the dollars, and the commitment to fixing it,’” Siegal says.

For instance, the ED team might determine on its own that every patient needs discharge vital signs. “But if senior leaders don’t make a policy, [hire] staff to support it, and measure whether it’s happening, there’s no guarantee that good plan will go anywhere,” Siegal cautions.


  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.

Triage-Related Cases

In the CRICO analysis, the authors looked closely at several ED cases related to triage, including:

  • A patient with severe vomiting and diarrhea waited hours to see the EP because the patient did not meet the criteria for sepsis, resulting in septic shock and death;
  • A patient with a hand laceration was not diagnosed with nerve damage, delaying surgery and resulting in loss of function;
  • A patient with abdominal pain and significant comorbidities (malignant hypertension and kidney disease) waited hours for care, leading to sepsis, pneumonia, and death;
  • A patient with pelvic inflammatory disease waited several hours before vital signs were reassessed. Only then was it recognized that she was in respiratory distress from sepsis.