Malpractice claims are more likely to succeed if documentation is insufficient, if an assessment was inadequate, or if something was not handled according to policy or protocol, according to the authors of a recent analysis.1

In all care settings, including the ED, “these particular issues increase the odds for closing with an indemnity payment,” says Jock Hoffman, senior editor at Boston-based CRICO.

Researchers analyzed 37,000 claims and lawsuits from the CRICO Strategies’ Comparative Benchmarking System. Of the 3,081 cases that involved the ED, about 8% included a policy or protocol as a contributing factor. Some case examples:

  • The emergency physician (EP) read a chest X-ray and discharged the patient. Later, the radiologist identified pneumonia, but did not follow the notification protocol. Neither the patient nor the EP was informed. The patient died of pneumonia.
  • No one informed an EP, per hospital policy, of positive blood culture results that returned after discharge, resulting in the patient’s death.
  • A patient leaving the ED against medical advice was not asked to sign the required paperwork.

Almost three-quarters of the claims involved a patient assessment as a contributing factor. Some case examples:

  • ED providers failed to consult cardiology to assess a patient’s chest pain. The patient later died of cardiac arrest.
  • A patient with chest pain never received a cardiology consult, despite symptoms that went unrelieved during the ED visit. Thus, everyone missed acute coronary syndrome.
  • An EP focused on kidney stones as the cause of the patient’s symptoms. The EP failed to review the chest X-ray or consider worsening symptoms, including back pain, and missed an aortic dissection.
  • A 45-year-old patient died of sepsis after a work up for flu-like symptoms. The EP failed to order a lactate blood test, which the plaintiff attorney alleged would have raised concern for sepsis.

Insufficient documentation was a contributing factor in 12% of the ED cases. Some case examples:

  • The plaintiff was discharged with a diagnosis of urinary tract infection, perineal/rectal pain, and urinary retention, and died of postpartum sepsis. An ED provider later stated the patient had refused admission, but no one had documented this in the chart.
  • An ED patient’s popliteal artery injury was misdiagnosed. In part, this was because of inadequate documentation of numbness and tingling and failure to review emergency medical services notes, which described symptoms of vascular compromise.
  • An EP diagnosed stroke, but there was nothing in the ED chart showing that tissue plasminogen activator was considered.

Diagnostic failure in the ED often can be traced to an incomplete picture of the patient’s presenting story. Both the physician and the nurse know some information. “But if they aren’t communicating, the full picture does not come together in a way that fully supports the diagnostic process,” says Dana Siegal, RN, CPHRM, CPPS, director of patient safety for CRICO Strategies.

Misdiagnosis also can be linked to a failure to document. “It is important to recognize that in the age of the electronic medical record, documentation is a primary form of communication, especially in the ED,” Siegal stresses.

The nurse takes vital signs and notes a decline in the patient’s condition. But the nurse is interrupted and forgets to chart the information. Sometimes, the problem is the ED nurse does not give the information verbally to the attending EP, who does not view the nursing documentation until the patient is discharged. “Failure of team interaction and communication, or missed information or failure to access available information, are the most common drivers of assessment failures,” Siegal explains.

To mitigate this and improve team communication, Siegal suggests EDs focus on:

  • clearly defined expectations of communications between EPs, ED nurses, and other ED patient care associates;
  • diagnosis and discharge huddles, during which team members can convene in person to review cases before a diagnosis is made, or before the patient is discharged;
  • chart reviews to assess documentation processes and identify trends in ineffective documentation (e.g., checking for consistent documentation of discharge vital signs taken at discharge);
  • review of cases that show the link between documentation failures and problems with patient assessment.

“ED leadership should consistently encourage staff to identify appropriate cases for debrief and/or case review as a standing learning methodology,” Siegal offers.

EDs must ensure policies and protocols reflect actual staff capabilities and available resources. For instance, some policies do not take into account that availability of services such as radiology or ultrasound may be different on weekends, nights, or holidays. “While it is imperative to recognize the use of workarounds by staff, it is equally important to understand the underlying system issues that create the workarounds,” Siegal notes.

Failure mode and effects analyses and root cause analyses can determine if policies are followed inconsistently, and, if so, why. “Determining if it is staff choice or system failure when policies are not adhered to will determine the appropriate intervention,” Siegal says.

For example, some policies state an ED nurse is supposed to accompany patients admitted to the ICU. “With limited night resources, an in-person handoff may not be feasible,” Siegal adds.


  1. CRICO Strategies. The Power to Predict: Leveraging Medical Malpractice Data to Reduce Patient Harm and Financial Loss. CRICO 2020 CBS Benchmarking Report.