Most emergency physicians (EPs) know they should review emergency department (ED) nursing documentation, but forget that some providers have documented things that happened before the patient even arrived at the ED.

“EMS [emergency medical services] providers’ documentation is generally unavailable at the time of the ED visit. There is a lot of lost information from prehospital services,” says Alan Lembitz, MD, chief medical officer at COPIC, a Denver-based medical professional liability insurance provider. “If you are a plaintiff attorney, that’s really fertile ground. When EMS describes significant findings that would have changed your management if you would have known about it, that’s a big deal.”

Lembitz says paramedics’ handwritten sheets usually provide a good description of the patient’s condition and what happened in the field. “With electronic charting, EMS providers often don’t complete their trip sheet in real time,” Lembitz notes.

Often, the EMS documentation is entered in a different system that is not readily available to the ED provider. “It is easy to forget about the EMS run sheets because they are not always embedded in the EMR [electronic medical record],” says Laura Pimentel, MD, a clinical associate professor in the department of emergency medicine at the University of Maryland.

For this reason, some EMS reports are available only as hard copies. “Unless the physician specifically looks for the report, it is not likely that it will ever be seen,” Pimentel explains. Some malpractice cases involve trauma patients discharged from the ED who later experience a bad outcome because of undetected injury. In that case, EMS records are scrutinized. For example, if EMS documented a bump on the patient’s head, but there is no mention of it in the ED record, that is problematic for the defense.

“This could be used to show that the hospital had poor recordkeeping, and perhaps wasn’t providing proper care and treatment to the plaintiff,” says Lori M. Shapiro, Esq., claims team lead, professional liability in the Melville, NY, office of Sedgwick Claims Management Services.

The plaintiff attorney is going to ask these questions at deposition: Had there been a fall prior to EMS arriving? Was EMS told about that fall? Was the bump a result of the fall? Does the patient have a history of falls? Was there lack of consciousness? If so, for how long?

“Any and all of these things can go into the assessment and evaluation of the patient. Without this information, a diagnosis can be missed or delayed,” Shapiro says.

There are other reasons for plaintiff attorneys to depose EMS providers. “If there are different stories about what happened to the plaintiff before EMS arrived, counsel would want to see what the EMS records show,” Shapiro says.

The following are some reasons why EMS providers could become involved in ED malpractice lawsuits:

Specifics on what was stated when EMS arrived at the scene could become a pivotal issue. “If the EMS records state that the patient smelled of alcohol, and a witness said he had been drinking, but the ED records don’t mention it, that could factor into a misdiagnosis,” Shapiro explains. EMS records could come up if plaintiffs allege delayed diagnosis. “Both the plaintiff and defense will want to take a look at the EMS records to put together a timeline,” Shapiro offers. Attorneys will be interested in how long it took EMS to arrive at the scene, how long it took EMS to arrive at the hospital, and how long it took the ED to evaluate the patient upon arrival.

Plaintiff attorneys can use EMS testimony to show the plaintiff’s condition before arriving at the ED, then the deterioration of the plaintiff after spending time in the ED. “They might be able to use that to show that there was a deviation in the standard of care in the ED that caused an injury,” Shapiro says.

For instance, EMS records might show the patient appeared alert and oriented at first, but declined slightly by the time he or she arrived at the ED. “A decline in a patient’s health prior to treatment does not mean there is a deviation from the standard of care,” Shapiro notes. “But having a timeline of events will certainly help to determine if there was.”

EMS testimony might corroborate the plaintiff’s version of events. According to EMS documentation, the plaintiff was in need of immediate care.

Yet hospital records show the plaintiff waited several hours to be seen. In this kind of case, ED providers might blame EMS for not telling them pertinent information. “But it’s likely that the ED has policies and procedures in place that they are supposed to follow when accepting a patient brought in by EMS,” Shapiro observes.

Conversely, the EMS version of events could help the defense discredit the plaintiff. That is the case if EMS testifies the patient said the stroke started 24 hours ago, but a family member later gives a much later time.

Also, it helps the defense if both providers’ documentation is consistent in showing the patient stated the stroke symptoms started a day ago.

“The ED can use that information in support of their defense that they did not deviate from the standard of care, because this patient was outside the window for them to administer tPA,” Shapiro explains.

In some cases, the EMS run sheet contains important information the EP did not acknowledge or act on. “It is likely that the ED physician will be liable for not reviewing the report,” Pimentel says. Sometimes, EMS testifies they verbally conveyed the information. “A he said/she said scenario never looks good for either party, particularly the physician,” Pimentel offers.

Problematic handoffs between EMS and the ED are a hurdle for the defense. It is best for the ED defense team if EMS testifies to a smooth handoff, with ED providers acting promptly on verbal reports. Of course, this does not always happen.

“EMS providers are appropriately offended and concerned for patient safety when they are ignored by hospital personnel,” Pimentel says.

EMS may wait too long to be acknowledged, and ED providers completely disregard EMS’ assessment of patient acuity. “It is likely that this would be exposed during a deposition,” Pimentel adds. “The timeline alone is telling.”