Patient Has Explanation for Symptoms? Probe Further!

Inadequate history is factor in many lawsuits

After a 50-year-old man told an emergency physician (EP) that he thought his upper back pain was a result of using a pull crank to start his mower, the EP did a brief musculo-skeletal history and physical exam focused on the patient’s back pain, and discharged him with anti-inflammatory medication.

“A few hours later, the patient presented again with back pain, and now chest pain. He was diagnosed with a significant myocardial infarction, and survived a stormy hospital course,” says John Davenport, MD, JD, physician risk manager of a California-based HMO.

The patient sued the EP for misdiagnosis of his myocardial infarction. “Trial testimony focused on the patient’s age, the actions which precipitated his symptoms, and the fact that myocardial infarctions sometimes present with arm, upper back, and shoulder pain,” reports Davenport.

The EP testified that he had considered the possibility of cardiovascular causes, but the chart didn’t support this. “Fault was found with the paucity of documentation around possible cardiovascular causes and the lack of a heart examination,” says Davenport. “The verdict was for more than $500,000.”

EPs Might Be Misled

Failure to obtain an appropriate history is the underlying reason for many ED medical malpractice lawsuits, according to Kevin Klauer, DO, EJD, chief medical officer at Canton, OH-based Emergency Medicine Physicians.

“Our best diagnostic information often comes from the people who are least equipped to provide it,” says Klauer. Patients often communicate poorly because they don’t feel well or because of language or educational barriers.

“People communicate their symptoms in different ways,” says Klauer. “If you take that at face value and don’t probe further to make sure they don’t have something bad, that wouldn’t be negligence in itself — but it might be a stepping stone to a bad outcome and a lawsuit.”

Inadequate history frequently results in allegations of wrongful death, failure to diagnose, or delay in definitive management, for instance. “Why did you miss the diagnosis of subarachnoid hemorrhage? Because you didn’t have a critical piece of information — but you didn’t ask more questions because you thought the headache was a sinus infection,” Klauer says. Consider these risk-reduction practices for EPs:

• Clearly document pertinent negatives.

A simple entry in the chart stating that the patient had no cardiovascular history and denied chest pain or shortness of breath would have given the EP a much better chance at prevailing in the above lawsuit, says Davenport, and would have provided evidence that the EP had indeed considered the heart in his evaluation.

• Remember that patients sometimes minimize symptoms.

“Some patients are afraid of serious diagnoses that they themselves suspect, and minimize their own symptoms out of fear,” says Davenport.

An elderly female was brought to the ED by a neighbor who witnessed the patient’s fall injury, but the patient stated she had simply slipped on a wrinkled doormat and felt fine. After a brief assessment, she was discharged home.

“The next day the patient was found by family with hemiplegia. She stated that she had been having balance and strength problems for several days, which eventuated in a stroke,” says Davenport. “The patient sued, and the defendant EP was found liable for a substantial amount.”

Davenport says the EP’s best defense is an awareness of the patient’s possible denial of illness, and a high index of suspicion for serious causes of purportedly minor symptoms.

“In this case, the ER doc never really asked the appropriate questions because he was busy, and initially set to expect a minor condition by her first comments,” he says.

• Ask people who accompany the patient to describe the symptoms and signs as they saw them.

In the above case, the neighbor stated at trial that when she tried to help the patient up after her fall, she seemed unstable and unable to use her right leg for a while. “This information might have aided the ER physician in coming to the correct diagnosis,” Davenport says.

• Don’t be misled by explanations offered by the patient.

A patient’s plausible-sounding explanation is often the “path of least resistance” for the EP, adds Klauer. “‘Oh, your chest pain is indigestion? Well, thank goodness — that makes it easy for me.’ It’s less effort and less testing.”

In a recent claim alleging misdiagnosis of subarachnoid hemorrhage, the patient initially told the EP she thought her headache was due to sinuses.

“There was a good history and good evaluation. But if we remove that information — the patient explaining away her symptoms — the EP would have potentially made a different decision,” says Klauer.

When patients offer an explanation for their symptoms, the EP should “receive the information in a black and white manner,” Klauer says. “When the patient reports chest pain, at that point I’m not interested in how they explain it away. It’s human nature to minimize our symptoms. That is oftentimes the root of why we go down the wrong path.”

Klauer points to the case of the playwright Jonathan Larsen, who reported chest pain during two ED visits before he died of an aortic dissection. When he first presented to the ED, he mentioned that he’d eaten a bad turkey sandwich.

“The EP decided he had food poisoning, despite the fact that he had no diarrhea and no vomiting,” says Klauer. During the second ED visit, he was diagnosed with a viral syndrome.

The family’s lawsuit demanded $250 million in damages, with an undisclosed settlement. Klauer says it’s likely that the patient’s explanation of his symptoms distracted the EPs involved from the patient’s chest pain.

Aortic dissection is a difficult diagnosis to make, and most of the time it’s missed on the first visit, he acknowledges. “But is it possible to make it? Yes,” says Klauer. “When someone gives us a piece of information that explains away their symptoms, sometimes the brain shuts off. But one should avoid the temptation to explain away chest pain, even if it’s convenient to do so.”

• Ask what you could be missing when patients report headache, dizziness, or chest pain.

EPs have less time due to higher-acuity patients and increased volume, but have to avoid saying, “I know the answer so I’m not going to ask for more data,” says Klauer.

“A lot of people spend time on things that don’t really bring value to the visit,” he says. “But communicating with the patient on a critical element on potentially life-threatening or injury-causing diseases that we could miss is always a worthwhile time expenditure.”

Klauer says to “always document and always function looking for the bad thing. Ask yourself, What is it I could miss? If it’s a subarachnoid hemorrhage, talk about it and ask questions about it.” (See related story on misdiagnosis of cauda equina syndrome, below.)

Klauer advises asking patients questions such as “What else have you not told me that I didn’t ask you about?” “Do you have any other symptoms that I haven’t asked you?” or “Are you sure this pain isn’t different somehow than your migraine pain?”

“Those questions are sometimes impossible to drag out of your mouth when you have six other patients to see,” he acknowledges. “We are so busy, and oftentimes overwhelmed, that we don’t want the answers. They create more work for us if we find them. They force you to stay longer at the bedside and to work even harder than you already are.”

Klauer says EPs should set out to prove to themselves that nothing serious is happening. “You may think you have a beautiful plan for intestinal cramping because you think it’s intestinal flu. The problem with that plan is, it doesn’t work for appendicitis,” he says.

• Remember that patients may intentionally omit information.

After a patient who had come in for an occupational health evaluation became agitated, he was seen by the EP, who sedated and intubated the patient. The patient hid the fact that he had drunk a large amount of water to dilute his urine in order to conceal drug use, which dropped his sodium levels, and the patient died as a result.

The EP was alleged to be negligent because of the route and dose of the sedating medicine. “The person who caused the initial problem — the agitation and the mental status change — was the patient, by drinking the water, of course,” Klauer says. “Nonetheless, there was such large potential exposure, that midtrial there was a settlement for the plaintiff for $225,000.”

In this case, a critical piece of information was not inadvertently, but intentionally, omitted by the patient, “but when there is a bad outcome, things can get complicated,” says Klauer.

EPs should expect to get inaccurate information regarding substance abuse, overdoses, and sexual history, for instance. “We know that people who intentionally overdose often have coingestions and they don’t disclose them,” says Klauer. “If you take that at face value and don’t investigate for additional toxins, you absolutely will be liable for that mistake.”


For more information, contact:

John Davenport, MD, JD, Irvine, CA. Phone: (714) 644-4135. E-mail:

Charles R. Grassie, MD, JD. E-mail:

Kevin Klauer, DO, EJD, Chief Medical Officer, Emergency Medicine Physicians, Canton, OH. E-mail:

This Misdiagnosis Is “Plaintiff’s Dream Case”

Show cauda equina syndrome was considered

As Kevin Klauer, DO, EJD, chief medical officer at Canton, OH-based Emergency Medicine Physicians, was examining a woman who presented to the ED with back pain, she informed him that she’d frequently had it before. When he probed further, she stated that the pain down the lower back was a little worse than usual, but didn’t offer much additional information.

“I went through all of the questions I go through to screen for cauda equina syndrome, and everything was negative,” he says. Klauer then asked the patient and the family, “Is there anything else that I didn’t ask that you need to tell me?” The woman’s daughter said, “Mom, why didn’t you tell him about the trouble you are having urinating?”

“This lady got an MRI, she had cauda equina syndrome, and she had her spinal cord decompressed within hours of her presentation ,” says Klauer. “She wanted it be a simple back strain, and she omitted a piece of history that she didn’t know was critical, which could have caused her permanent bladder dysfunction, permanent weakness in the leg, or other complications.”

Klauer says that if the daughter hadn’t given this piece of information, he would have missed the diagnosis. “And is any jury in the world going to blame her?” he asks. “Though infrequent, this is a scary, dangerous diagnosis that is frequently missed until the neurological deficits are permanent.”

Charles R. Grassie, MD, JD, former vice president of risk management and CEO of Emergency Physicians Medical Group in Ann Arbor, MI, says missed cauda equina syndrome is “a plaintiff’s dream case. It is not as frequent as missed myocardial infarction, but these are usually huge-dollar cases.”

Patients might be incontinent, impotent, or paralyzed as a result. “It doesn’t kill the patient, but it maims them for life, and could be potentially avoided if treated,” says Grassie. “It’s an emotional case because of the nature of the damages and because if it’s taken care of timely, it might be prevented.”

EPs should be clear that cauda equina syndrome was considered for every back pain patient they see, advises Klauer. “Document, ‘There are no signs of cauda equina.’ That’s all you have to say,” he says.

For any patient who reports chronic back pain, document whether he or she has any bladder incontinence or retention. “Do this each and every time, even if you just saw them half an hour before,” says Grassie. “If they go home and they then have that problem, your documentation shows that they didn’t have it at the time you saw them.”

Diagnosing cauda equina syndrome requires a level of testing that’s a little more difficult in the average ED, notes Grassie. “EPs sometimes have a fear of crying wolf. It requires pulling the trigger and getting an MRI,” he says. “It might mean you have to go through the difficulty of transferring the patient.”

In some cases, Grassie says the diagnosis is missed because patients are frequent ED visitors. “Frequently, patients with chronic pain are treated rudely and maybe even abusively in the ED. So the patient is angry to begin with, and this time, comes in with something catastrophic,” he says.

Grassie says that EPs should treat everybody, even full-blown addicts, with respect and acknowledge their own biases. The EP doesn’t have to prescribe narcotics for an addict, but should nevertheless treat him or her professionally. “Addiction is just another diagnosis,” says Grassie. “Everybody working in EDs develops certain categories of patients that they dread. If you recognize your biases before you walk in the room, it helps you to put those biases aside.”