Diagnostic-related ED malpractice lawsuits frequently allege test ordering mistakes, according to a recent analysis.1 Making the correct diagnosis in the ED “is like trying to put together a puzzle without having the picture on the cover of the box,” says Dana Siegal, RN, CPHRM, CPPS, director of patient safety for CRICO Strategies, a division of the Risk Management Foundation of the Harvard Medical Institutions.

The top allegation in most ED cases (56%) is diagnosis-related, according to the analysis of 3,212 closed claims in CRICO Strategies’ Comparative Benchmarking System (CBS), a database of medical malpractice claims. Of diagnosis-related ED claims, 65% involved a test ordering issue. “ED cases that end up as malpractice claims are most often cases where there’s something acute going on that gets missed,” Siegal observes, adding that ED malpractice claims involving a test ordering issue “often come back to information and communication.”

Discharge “timeouts” are a chance for the entire ED team to ask two important questions: Is all the information in? If not, can the patient still be discharged? “Maybe some tests aren’t back. But the providers really feel that, based on the concurrent monitoring, that it is safe to discharge somebody,” Siegal offers.

It does not make sense to hold an ED patient for many hours waiting on test results if there is enough evidence to conclude it is safe to discharge the patient. To reduce risks in this situation, EDs can inform patients that some tests have not returned, and check vital signs right before the patient leaves.

“One of the huge voids we found in ED medical records where we missed the diagnosis was there were no discharge vital signs,” Siegal reports.

Most ED charts included at least one set of initial vital signs. Some charts contained another set of vital signs that were recorded sometime during the ED visit, but few contained vital signs recorded immediately before discharge. “Discharge vital signs are a last check to see if things are changing or evolving. Quite often, they are missing,” Siegel laments.

During the discharge timeout, ED providers can verify vital signs are documented and evaluate any that are abnormal (e.g., ascertaining if elevated pulse rate is just caused by fluids that were administered, or if something else is going on). Discharge timeouts can catch patients who should not be discharged, and could confirm why it is safe to discharge a patient even with incomplete test results. However, missed diagnoses caused by anchoring or confirmation bias still happen.

“Analysis of ED claims repeatedly demonstrated that biases like these can impact cases much earlier in the diagnostic process. We realized that there is an opportunity to interrupt the error process by meeting sooner than discharge,” Siegal says.

Diagnostic timeouts happen earlier in the process, giving the ED team a chance to share everything they know. “Before we even start going down the final diagnostic path, let’s be sure we have all the puzzle pieces,” Siegal says. “Information is not always in the EHR.”

New information can completely change the picture for patients who initially did not seem too concerning. “Everybody thinks that the big failures in the ED are the code blues — somebody went into cardiac arrest, and we didn’t rescue them. That is really not where our vulnerabilities are,” Siegal explains.

Many claims in the CRICO analysis involved patients who were overlooked because they did not present with an obvious acute issue. “They don’t present themselves as loudly. Those are the patients that often get lost in the shuffle,” Siegal notes.

Team training — on communication skills, monitoring patients, and sharing information while the patient still is in the ED — can ensure the correct tests are ordered and acted on. “While we have the patient with us, we need to be trying to learn as much as we possibly can,” Siegal stresses. “So much of this is still dependent on human conversation and thinking out loud together.”

In claims where testing issues were connected to misdiagnosis, these were common allegations:

ED providers did not order the correct tests. “The challenge is we don’t always order the right tests to get the right information,” Siegal laments.

In some cases, the ED team goes down the wrong diagnostic path because a patient convincingly explains away his or her own symptoms. For example, an obese man with chest pain mentions eating pizza for lunch and lifting something heavy, not wanting to confront the possibility of a heart attack.

In other cases, the ECG looks normal, and the patient is discharged home (with instructions for follow-up care) because there is a reasonable explanation for the symptoms. “But if we didn’t order cardiac enzymes, we might be missing that the patient has an evolving heart attack,” Siegal explains.

Sometimes, ED providers are tripped up by the many biases known to affect the diagnostic process — confirmation bias, for example, where the emergency physician (EP) starts the workup with a diagnosis in mind and works to confirm it. “Here is where a negative test result might rule out one diagnosis and incorrectly support the ‘confirmation’ of another direction,” Siegal says.

For example, a negative D-dimer in a patient with chest pain, shortness of breath, and rapid pulse leads the EP to “rule out” a pulmonary embolism (PE) and head down the cardiac pathway. In fact, a chest CT would have identified the PE, even in the face of a negative D-dimer.

Reassessments may reveal that different tests are needed. “What’s going on with the patient right in front of them is important information,” Siegal says.

A child admitted with mild fever records a higher temperature; a woman with non-specific chest pain and “anxiety” is reporting jaw pain. “Quite often, we are building our picture on the initial presentation. But now it’s four hours later, and something is clearly evolving before our very eyes,” Siegal says.

The EP orders a regular X-ray for a patient with non-traumatic neck pain, but might consider an MRI if the patient begins complaining of leg numbness. But the MRI is ordered only if the new information is shared with the EP. “EDs are busy, demands on staff are high, and missed communication is a key factor in many cases,” Siegal notes.

The ED nurse probably believes the leg numbness has been communicated if it is documented in the record. However, the EP might not review the nursing notes, expecting to be verbally informed of significant changes. “Both of them are right. But we are busy and running around, and we don’t talk,” Siegal says.

Comments from the patient’s spouse, child, anyone accompanying the patient, the patient’s primary care provider, or a consultant all contribute to the evolving diagnostic picture. The triage nurse may see a picture suggestive of gastroesophageal reflux disease and indigestion. Walking back to the treatment area, though, the patient mentions his father died of a ruptured abdominal aortic aneurysm. “That is a critical piece of information. But the person walking the patient to the room was the nursing assistant, and assumes the triage nurse already has that as part of the patient’s history,” Siegal says.

The patient does not mention it again, and the information is lost. “One obstacle that is often cited is the EHR,” Siegal reports.

While helpful in consolidating information in one place, the EHR also can be an obstacle when information is not added, or navigation makes it difficult to see the big picture. To find the correct diagnosis, “multiple providers need to be gathering information. It’s dependent on them putting it all in the same place,” Siegal says.

Plaintiff attorneys often argue the standard of care required the EP to order a specific test or radiology study. “We see this in cases where the alleged symptoms fit multiple potential diagnoses,” says Edna McLain, JD, a partner in the Chicago office of Smith Amundsen.

Common symptoms, such as chest pain or back pain, could be indicative of numerous medical conditions. For the plaintiff attorney, the two relevant questions are going to be: Was the medical condition on the differential diagnosis? Should a test have been ordered to rule that condition in or out? “Good documentation demonstrates the EP’s thought process,” McLain says.

Many EPs do not document what is on the differential diagnosis or if a condition is ruled out. When testifying months or years later, it is going to be difficult for EPs to remember what was considered at the time of the visit. “At times, the plaintiff attorney will say the diagnosis was not on the differential — or, that the ED physician considered it very low on the differential diagnosis and did not properly rule it in or out,” McLain explains.

ED providers ordered the correct tests, but did not wait for the test result to return — and nobody followed up with the patient. Some ED malpractice claims in the CRICO analysis involved cardiac enzymes that initially returned normal. In those lawsuits, the focus became why the EP ordered the test in the first place if the patient was just going to be discharged without even waiting for the results. Typically, the ED is crowded, and the patient, who appears stable, is eager to be discharged home. Then, the next set of enzymes returns abnormal. “The patient is already gone, and post-discharge follow-up falls through,” Siegal says.

The initial reading of the test is negative, but the overread reveals something abnormal. “In ED cases involving radiology reads, the initial result is often read by a resident, or perhaps by telemedicine in the middle of the night,” Siegal says.

The initial findings are reassuring; there is no bleeding in the brain, no pneumonia, and no fracture. The EP discharges the patient home. The next day, the final read reveals something abnormal. This is a second chance to make the correct diagnosis, but communication breakdowns can stand in the way. “It’s reported to the ED. But now you have a totally different team involved who doesn’t remember, or even know, the patient,” Siegal says.

Of the 1,797 ED diagnosis-related cases in the study, 7% involved post-discharge follow-up (including pending test results). “If there is not a specific process in place to document and follow up on these revised findings, the result never reaches the patient,” Siegal says.


  1. Schuler K. Insights from emergency department medical malpractice cases. CRICO Strategies.