Of diagnosis-related ED malpractice claims, neurologic and cardiovascular diagnoses were the most common errors, according to the results of a recent analysis.1 “The underlying issues that predispose EPs to diagnostic error are cognitive bias and underlying systems factors. These underlying issues have not largely changed much over recent history,” says Amish Aghera, MD, the study’s contributing reviewer.

The Doctors Company, a Napa, CA-based medical malpractice insurance company, analyzed 326 closed claims from 2014-2019. Thirty-one percent involved either the neurologic or vascular systems. Most diagnostic errors involved one of three issues: Ordering of diagnostic tests (53%), consult management (33%), or ongoing assessment (32%). The researchers were not surprised by these findings. As for the ability of EPs to always make the right diagnosis, “the end result is multifactorial,” says Aghera. “It’s sort of commonly known and appreciated that there is going to be some level of cognitive bias.” Of claims with paid indemnities:

  • The top three final diagnoses (i.e., what the diagnosis should have been) were cerebral artery occlusion with an infarction, intraspinal abscess, and acute myocardial infarction.
  • The top category for missed, delayed, or wrong diagnoses was cerebrovascular disease (including subarachnoid hemorrhages and cerebral artery occlusions).
  • The second most common category for missed, delayed, or wrong diagnosis was ischemic heart disease (including acute myocardial infarctions, acute coronary syndrome, and coronary atherosclerosis).

The findings show the connection of ED providers to so many other areas of the healthcare system.

“It is easy to see how someone would fall into the trap of a delayed diagnosis,” says Aghera, director of the Center for Clinical Simulation and Safety at Maimonides Medical Center in Brooklyn. “The bigger question is, as we see these types of studies show that we fall short in similar areas: What can we do to put ED providers in the best position to make the correct diagnosis?”

EPs are trained to appreciate the high-risk nature of certain cardiovascular or neurology diagnoses. “We know that missed dissections or abscesses can have devastating consequences for patients. Ultimately, it leads to lawsuits, because the consequences are so significant,” Aghera observes. “If we are trained to do this, what is it about the environment we work in that allows providers to be prone to delayed or missed diagnosis?”

One surprise was there were not many systems issues identified. For example, none of the claims involved problems with transmittal of test results. “Decreased frequency in systems issues may be related to the advancement in EHR technology — specifically, alerts built into the system,” says Jacqueline Ross, RN, PhD, the study’s author and coding director in the Doctors Company patient safety and risk management department. These specific issues arose in the ED malpractice claims:

EPs struggled to access tests, such as CT or MRI, to diagnose neurological conditions. “It’s probably pretty uncommon to find an EP working in an environment where they can easily access MRI to make a diagnosis like a spinal abscess,” Aghera says.

This creates an underlying bias. EPs know if they start down a certain diagnostic path, they are going to be committing that patient to hours (or even days) of diagnostic imaging. If symptoms are not clear-cut, the EP may be more inclined to wait and see if symptoms worsen before putting the patient through an extensive workup. The solution to this, says Aghera, “is to put providers in a position where they can make decisions that can be executed more easily.”

However, easier access to tests means higher costs. Aghera says the answer, perhaps, is “some combination of decision support or algorithms working in the background to help identify a select few patients who are at higher risk.”

EPs lacked easy access to consultants. “At the end of the day, for any given practitioner to make a diagnosis, you need information,” Aghera notes.

The patient is a big part of that, but so are test results, nurses, and ancillary staff. Some cases also need input from consultants. “There may be something subtle about a patient presentation for an uncommon diagnosis that can tip a provider off that something unusual may be going on,” Aghera observes.

One-third of cases involved either a delay or failure in obtaining a consult. It happened most often with neurology, orthopedics, and cardiology cases. One malpractice claim involved a woman in her 50s who presented with slurred speech, left-side facial droop, and left arm drift. A CT showed no acute bleed, and the symptoms were mild. The EP did not consult neurology. The patient did not see a neurologist until after admission.

By that time, the symptoms had worsened; even after the hospitalist ordered a neurology consult, the consult did not happen until six hours later. Ultimately, a CT angiogram showed a bilateral dissection of the internal carotid artery. The patient was transferred to a higher level of care.

She was discharged to a stroke rehabilitation facility with a paralyzed arm and memory deficits. The resulting malpractice claim included multiple allegations, but much focus was on the EP’s failure to consult a neurologist early. “It’s important for patients to get triaged to the right levels of care,” Aghera stresses.

If a patient was hit by a car, that patient would want to be seen at a trauma center where there is access to appropriate testing and definitive care. “Stroke centers work the same way, with very clear systematized pathways of care that put patients on a pathway for earlier diagnosis and treatment,” Aghera observes. “This is just not possible in smaller hospitals.”

The EP failed to order CT scans, MRIs, or blood tests. Test ordering came up in 53% of cases. For cases in which an MRI was not ordered, the delay occurred after the decision to admit (e.g., ordering an MRI to rule out stroke). “The cases involved multiple specialties and levels of care, and involved the failure to order the test stat instead of routine,” Aghera notes.

There were breakdowns in care during the initial assessment. In 15% of cases, this issue arose. Part of the problem is patients interact with so many caregivers in the ED — nurses, technicians, radiology technologists, ancillary staff, EPs, and consultants. “Providers should consider all the information available in the EHR when formulating their differential diagnoses to avoid anchoring bias,” Ross offers. In one case, a subdural hematoma was missed in a man in his 60s who presented after a motorcycle accident while wearing a helmet. The patient exhibited no neurological deficits. The EP sutured a hand laceration, and the patient was discharged. “The expert reviewers criticized the EP for failing to do a head CT due to the patient’s history of being on warfarin and having recent head trauma,” Aghera reports.

Patients did not follow the ED treatment plan. This was a problem in 9% of claims. Poor communication with patients is a contributing factor. “Providers should give patients detailed discharge instructions in plain language,” Ross says. There are socioeconomic factors to consider, too. Some patients own no transportation to follow-up care and/or are not equipped with insurance to pay for it. “Many EDs have case managers who can assist with resources and referrals to assist patients in need,” Ross suggests.

ED providers cannot communicate with the patient as much as they would like. “If we could all take care of one patient at a time, we would probably not make mistakes,” Aghera predicts. “But that’s not the way our system is designed. There’s more and more pressure on ED providers to work faster.” The goal is to “put the patients in a place where the system is designed to capture their diagnoses, as opposed to being shepherded through in the most efficient manner possible,” Aghera adds.

The study’s findings could help EDs justify reallocating money into integrated systems or AI decision support tools. “The nice thing that we gain from the data from the malpractice world is you can almost put a dollar [amount] on what it costs when things go wrong,” Aghera says. “It helps ED administrators to think about this more holistically.” It is hard for EDs to demonstrate value for a process or initiative that prevents a misdiagnosis from happening. “But one bad case could be easily a million dollars or more. If you can prevent just a few cases, and reinvest that reinvest that money in safety products, you could probably catch a lot more latent errors that are waiting to happen,” Aghera offers.


  1. Ross J. Study of emergency department diagnosis case type malpractice claims: Abstract. The Doctors Company. June 2021.