After discharge from an ED, did a patient experience a bad outcome serious enough to result in a malpractice lawsuit? The plaintiff attorney is going to argue the EP should have ordered more tests, observed the patient, sought out more consults, or admitted the person.

“That’s a given,” says Stephen Colucciello, MD, FACEP, vice chair of the department of emergency medicine at Carolinas Medical Center in Charlotte, NC. Colucciello shares some issues he has seen become problematic during ED claims alleging premature discharge:

Abnormal vitals are noted, but go unaddressed. The EP takes a look at the chart and decides to discharge the patient. “The vital signs are then taken, after the EP is done with the chart, and they’re abnormal,” Colucciello says.

The EP has moved on to other patients, and never goes back to check on the patient who is about to be discharged. “There needs to be a policy that ED nurses verbally approach EPs for abnormal vital signs,” Colucciello offers.

Some abnormal vitals are not terribly concerning. “If we already knew the patient was febrile, if the temperature goes up or down, for the most part it’s immaterial,” Colucciello observes.

The same is true if blood pressure is a little high. The EP would want to know if it is low, less than 90 mmHg for an adult who is not elderly, or any patient has a shock index of 1 or higher, or a heart rate over 100, Colucciello notes.

Some ED systems hold up discharges until an EP responds to an alert he or she received. “This happens so often that it needs to be fixed in a ‘Stop, don’t go any further,’ manner,” Colucciello suggests.

It may be that an anxious patient with slight tachycardia is OK to discharge if previous records show that same patient is frequently tachycardic in the ED and it appears to be stress-related, not pathologic. “The emergency physician should document this explanation in the chart,” Colucciello adds.

High pain levels at discharge are used to argue the patient was assessed or treated inadequately. “Elevated pain scores do not automatically mean opioids,” Colucciello notes.

If pain medication is not given, the EP should document the reason why not. For instance, the EP might chart: “I do not believe opioids are appropriate for this patient with chronic low back pain. Encouraged patient to get physical therapy. Community resources provided.”

“Those patients are unlikely to have a problem they are going to sue for,” Colucciello predicts. “Not many plaintiff lawyers are going to take a case where the patient is saying, ‘They didn’t give me opioids, and I want a million dollars.’”

More concerning, both clinically and legally, are unexplained increases in pain scores, particularly if pain is acute as opposed to chronic. If a patient with cellulitis arrived with a pain score of seven but is about to be discharged with pain at a level of 10, maybe something was missed. “That’s an opportunity for reflection,” Colucciello says. “The EP should ask, ‘Am I missing something? What haven’t I done?’ In this case, it’s a CT scan to look for fascial air.”

ED nurses chart something as the patient is discharged — and the EP never addresses it. “The EP must review the nurse’s notes, all of them, including ones made during the ED stay,” Colucciello stresses.

Many times, the statement “have reviewed the nursing notes” is checked off too early in the ED encounter. The EP sees the patient’s chief complaint was mild nausea or lightheadedness. Then, at the point of discharge, the nurse documents substernal chest pain radiating up the left arm. That kind of inconsistency can be used to incite finger-pointing, Colucciello cautions. “The plaintiff wants us to accuse each other. That rarely leads to a good outcome,” he says.

If EPs do notice an inconsistency like that, says Colucciello, “we don’t ask nurses to change their notes. We comment on their notes.”

Educating nurses on the nuances of various terminology is a good idea, according to Colucciello. While “fussy” can describe any sick child, the words “irritable,” “inconsolable,” or “lethargic” carry another connotation. “These are code words for meningitis or sepsis, and all need to be addressed if the child is to be discharged,” Colucciello says.

If EPs see a child about to be discharged described as “lethargic,” they can chart something like this: “Child is not lethargic on my exam. Interactive and playful. Do not have concerns for serious bacterial illness such as meningitis or sepsis.”

ED discharge instructions are too vague to help the defense. Many instructions state the patient should follow up with a primary care physician within 48 hours. The obvious problem is many patients do not know a doctor they can or want to visit regularly. Colucciello says better discharge instructions are more specific, as in: “Follow up with a primary care physician by Wednesday. If unable to see a doctor by then, return to the ED.”

“The reality is that the ones who come back are getting sicker, or you missed the diagnosis in the first place,” Colucciello explains. Although not always possible, it is ideal to direct somebody to actually make an appointment before the patient leaves the ED.

About 70% of Colucciello’s patients are underinsured. There may be a clinic these patients have visited, but they do not see a private doctor. “Many have no medical home at all. If you say, ‘Get in this week,’ it’s not going to happen,” Colucciello observes. “Follow-up is a huge issue in emergency medicine.”

The health system’s clinics save a certain number of slots just for these kind of follow-up appointments. An ED scheduler also gives the patient a reminder call. “The number of appointments you need a day depends on the size of your ED,” Colucciello offers.

Another option is for the ED to make follow-up calls. Most of the time, these calls are made to a random sample of patients to gauge patient satisfaction. “But you can also do targeted callbacks on patients you had clinical concerns about,” Colucciello suggests. The hope, he adds, is that “[patients] return to the ED, and you get a second chance rather than hearing from a lawyer months later.”

There are no serial exams documented. “This is a common theme in inappropriate discharge cases,” Colucciello notes.

For most complaints that require diagnostic imaging and lab tests, such as neurological complaints or abdominal or chest pain, “you write a minimum of one follow-up note,” Colucciello says. This could be as simple as “Re-examined the patient. Patient appears better” or “Patient smiling and calm, not feeling weak.”

Simply put: Whatever the chief complaint was, it is addressed in the repeat exam. “Based on that, you do more tests, consults, admission, observation — or, if the complaint has improved, then discharge,” Colucciello says.

Joan Cerniglia-Lowensen, JD, has defended multiple lawsuits in which the patient complained of chest pain, but just a single cardiac troponin is conducted. The patient is discharged without going through follow-up enzymes. “By the time the patient returns, treatment is delayed by several hours,” says Cerniglia-Lowensen, an attorney at Pessin Katz Law in Towson, MD.

Sometimes, the ED chart states the patient appeared stable, with no abnormal vitals, no continuing chest pain, an adequate cardiology consult, and adequate follow-up instructions. Even with all this great documentation, the lack of follow-up cardiac enzymes makes for a difficult defense. “Most of these cases are settled,” Cerniglia-Lowensen says.

The plaintiff’s argument goes like this: If the patient had been in the hospital waiting to submit the next series of enzymes, they would have experienced myocardial infarction (MI) while on a monitor. Therefore, the patient could have been resuscitated. The plaintiff’s expert will testify that the nature of the MI was such that it would have been amenable to early treatment, and that the patient could have been moved to the cath lab in time. “That’s not necessarily true,” Cerniglia-Lowensen says. “But that is the argument.”

It is hard to counter assertions about an outcome that could have happened, since it really cannot be disproven. “The deceased patient and their family are a lot more sympathetic than an EP who is being painted as sloppy,” Cerniglia-Lowensen observes.

The chart is more defensible if it states there was no abnormal findings suggestive of a cardiac event, with meticulous follow-up instructions given to the patient. “Then, it doesn’t look like we are throwing the patient into the great abyss,” Cerniglia-Lowensen explains.

Some patients are going to be discharged with abnormal vital signs. For example, many ED patients have high blood pressure; not all can be admitted. “The biggest challenge is patients who haven’t seen a doctor in 10 years who come to you with extremely elevated blood pressure, and you are trying to provide appropriate follow-up,” Cerniglia-Lowensen says.

For the EP, the best course of action is to treat the patient by giving them a week’s worth of medication, and to document a discussion with the patient about the importance of follow-up. Specific names of providers in the area also are helpful.

When a bad outcome happens shortly after the patient leaves the ED, litigation is likely to follow. “You can’t insulate yourself from a lawsuit,” Cerniglia-Lowensen laments. “What you can do is make sure you are not an easy target.”