Many ED malpractice claims would be defensible except for one problem: There is nothing in the chart to explain what the EP was thinking at the time of the ED visit.

“Everyone is going to miss a diagnosis. It’s inherent in emergency medicine,” says Kevin J. Kuhn, JD, a partner at Wheeler Trigg O’Donnell in Denver.

A poor outcome does not necessarily equal malpractice. It is possible that it was too early to make a diagnosis at the time of the ED visit. For example, documentation that a headache has subsided substantially or that the patient responded to treatment is important to show why the EP thought subarachnoid hemorrhage unlikely. “The thought process is what we want to see to help the folks we are privileged to represent,” Kuhn says. “If we can see that documented, that is so helpful.” This makes it easier for attorneys to defend a malpractice claim. Consider these two common fact patterns:

In some spinal emergency cases, the rationale for the location ordered for imaging is not documented. For instance, patient status post C-spine fusion who experiences a fall from bed at home comes to the ED. The patient presents with an onset of new neurologic symptoms that seem clinically unrelated to the surgical area. The EP obtains an MRI of the lumbar spine initially. Later, the plaintiff alleges that an MRI of the entire spine was required immediately in this circumstance.

“In a case like this, we’ve seen lack of documentation of medical decision-making hurt the provider’s defense, especially where delay in diagnosis is alleged,” says Renée Bernard, JD, vice president of patient safety at The Mutual Risk Retention Group in Walnut Creek, CA.

In sepsis cases, ED providers appear to have disregarded a clinical decision tool or alert system. Plaintiffs will allege the alert from the tool should have triggered the ED to implement a treatment plan for sepsis. “The EP’s clinical judgment may determine a different treatment course is appropriate,” Bernard says.

Sepsis bundles do not set the standard of care for EPs making judgments as to individual patients. “Good documentation acknowledges all pertinent clinical data,” says Bernard, noting this includes clinical decision tool alerts, which are automatically documented in the EMR. “Otherwise, it looks like a piece of information was missed or was not addressed.”