After recently reviewing a missed pulmonary embolism (PE) malpractice case against an EP, an expert found some disturbing implications.

“The case was against an ER doctor who clearly failed to diagnose a PE,” says Frank Griffin, MD, JD, an adjunct professor and health law scholar at University of Arkansas School of Law.

Notably, the facts of the case clearly did not meet the criteria necessary for a legal negligence judgment against the EP. “But the case contained some facts that were likely to be used to inflame the jury against the doctor,” Griffin notes. He wondered how a jury might respond. Would they follow the law, or follow their emotions?

In the ED, the patient did not demonstrate classic symptoms of a PE, but did show some signs of PE. The doctor diagnosed the patient with anxiety-induced hyperventilation, and directed the patient to breathe into a paper bag as treatment. After that, the patient was discharged home. The patient died as he arrived home, only minutes after leaving the ED. “The patient’s story was heartbreaking, and he had a very sympathetic family,” Griffin notes.

However, to be legally responsible, the doctor’s failure to diagnose the PE must have caused the patient’s death. In this case, it was clear the death occurred so soon after the ED visit that it doubtfully could have been prevented. “Arguably, the doctor’s failure did not cause the patient’s death, so the doctor was not technically responsible for any legal damages,” Griffin adds.

In reality, the surgeon who had performed the patient’s surgical procedure two weeks earlier arguably should have given the patient prophylaxis to prevent the PE from happening, Griffin offers. Nevertheless, only the EP was named in the lawsuit. “The surgeon was beloved by the family and was not sued,” Griffin says.

Griffin personally experienced a PE after orthopedic surgery. “I was particularly interested in how PEs were treated by juries,” he says. “The area is very complex and controversial in orthopedic surgery.”

Griffin decided to conduct a study to learn more about how juries view PE misdiagnosis. He analyzed 71 malpractice cases involving PE.1 Some key findings:

  • Juries seemed to hold EPs to a higher standard than other doctors, putting them at higher risk for adverse verdicts;
  • Difficult diagnostic challenges made juries more forgiving of an initial misdiagnosis in the ED;
  • Physicians prevailed in cases in which they diagnosed the PE immediately, regardless of the patient’s outcome;
  • Physicians’ initial misdiagnosis often resulted in plaintiff verdicts.

One EP lost a case in which the patient died about two hours after presentation. This verdict was particularly troubling because of the timing, Griffin says.

“The median time to CT diagnosis was 2.4 hours at the Mayo Clinic — and starting treatment without diagnosis can be dangerous,” he explains.2 Griffin offers two recommendations for EPs to reduce legal risks of missed PE:

  • Maintain a high level of suspicion for PE when patients present with symptoms or a clinical history that can be associated with PE (e.g., recent major surgery, cancer);
  • If PE is part of the differential diagnosis, initiate treatment, or document the reason for not doing so.

“Be sure that you are truly dealing with a minor issue before recommending seemingly dismissive treatments like breathing into a paper bag,” Griffin adds.

It is especially important for the defense team to look at causation closely. It could be true the EP did miss the diagnosis, as PE can be difficult to diagnose. “But you are not legally responsible unless your failure to diagnose actually caused the complication or death,” Griffin stresses.

This becomes a crucial point in cases in which a patient dies from PE soon after discharge from the ED. There is a strong argument to be made that the patient likely would have died even if the appropriate work-up and treatment were performed.

“The defense expert can testify on the timing of the PE in relation to the timing of the EP’s interaction with the patient,” Griffin notes. However, EP defendants need to face reality. It might be true the bad outcome from the missed PE could not have been prevented, and that the EP was not legally responsible for this.

“But if your malpractice case includes ‘bad facts,’ it may be in your best interest to settle the case rather than risk a jury acting on emotion,” Griffin cautions.


  1. Griffin F. Jury trial outcomes for medical malpractice cases involving pulmonary embolism. DePaul J Health Care Law 2017;19.
  2. Smith SB, Geske JB, Maguire JM, et al. Early anticoagulation is with reduced mortality for acute pulmonary embolism. Chest 2010;137:1382-1390.