Many ED Admissions Are Motivated by Lawsuit Fears

Emergency physicians' (EPs) decisions to admit or discharge patients are motivated, in part, by liability concerns, according to recent research.

In one study, EPs, and patients admitted primarily for acute coronary syndrome, were both surveyed about the content of communication that occurred, estimates of risk at the time of admission, and the perceived primary purpose of admission.1

About a third of patients, and almost half of EPs, reported that coronary risk — the primary motivation for admission — was not discussed. In addition, 11% of EPs said that medical-legal concerns were one reason for their disposition decision, and 27% said that they would not have chosen admission for themselves if they were the patient.

In another study, researchers found that congestive heart failure (CHF) patients discharged from 27 New York and New Jersey EDs dropped by 63% between 1996 and 2010.2

While 24% of CHF patients were discharged from EDs in 1996, only 9% were discharged in 2010. The trend of EPs admitting more CHF patients is mainly due to increasing concerns about medical malpractice lawsuits, according to the researchers.

Fear of lawsuits is causing ED physicians to practice "defensive medicine," including ordering needless admissions, according to David C. Seaberg, MD, current president of the American College of Emergency Physicians (ACEP). Seaberg is an attending emergency physician with Erlanger Health System in Chattanooga, TN, and former residency director and chairman of the department of emergency medicine at the University of Florida.

"Defensive medicine is not just an emergency medicine problem. This is an issue all through medicine," says Seaberg. "But certainly, there are some additional concerns for emergency medicine. There are a lot of additional factors that make the ED have higher liability."

These factors include the high-stress environment in the ED, the fact that ED physicians don't know their patients, and that ED patients are usually having acute medical conditions, says Seaberg.

"The costs of defensive medicine have been estimated from $37 to $200 billion dollars a year. It's certainly prevalent in the ED," he says. One reason may be the fact that clinical policies utilized by EPs don't address factors such as a patient's social support, whether he or she has a primary care physician, or the ability to get prescriptions filled.

"The kind of care the patient will get as an outpatient isn't really factored into the clinical policies that EPs have to take into account," says Seaberg. "This makes it more difficult to not practice defensive medicine."

Reform on Horizon

ACEP is working on comprehensive liability reform for emergency physicians, reports Seaberg, including the possibility of changing the negligence standard for emergency care.

"If we're going to try to decrease the cost of care, we're going to need some sort of liability reform," he says. "This is not shocking news to anyone in medicine. It's a major problem."

Of 1,700 EPs surveyed by ACEP in May 2011, 53% said fear of lawsuits was the main reason they order the number of tests they do. In part, says Seaberg, this is due to unrealistic expectations of ED patients.

"In some regards, the American public wants 100% certainty, and we can't be 100% certain. We can't guarantee all outcomes," says Seaberg. "EPs do not want to miss anything, no matter how rare."

Seaberg notes that although more than 90% of EPs will face a lawsuit at some point in their career, only 10% of lawsuits will ultimately be successful. "But it only takes one," he says. "Certainly, payouts have increased. There is also a psychological burden if you have to go through a lawsuit."

Even if liability reform were enacted today, Seaberg says that the practice of defensive medicine would likely continue by many EPs for years to come. "It will take a generation to change physician behaviors," he explains. "We trained physicians to order tests rather than follow guidelines and examine patients."

There is a better opportunity for federal tort reform right now than in previous years, adds Seaberg. "We are seeing a change in the federal level now, due to the mood of the American public," he says. "We can't keep spending what we are on health care and be an economically viable country."

Show Thought Process

The reality is that in a busy ED, it may be easier for an EP to simply order a test than to spend time explaining to a patient why it's not indicated.

Seaberg recently treated a patient who bumped her head but had no loss of consciousness and didn't meet the criteria for ordering a head CT scan. Even though he explained that there was only a 1 in 1,000 chance that the CT would show anything, the patient still insisted on it, and the test was ordered. "We can explain the science behind it, but we don't want to get argumentative. It can affect our customer-service scores," he adds.

If you choose not admit a patient or order a test because you don't think it's clinically indicated, document your thought process, advises Seaberg. "That gives you the best defense in any medical liability case," he says.

This should include what you explained to the patient, the fact that the patient agreed not to have the test or be admitted, the fact that he or she has access to a primary care physician, and the fact that he or she understood the discharge instructions.

"The doctor's note section on your medical record is the most important part of your record," says Seaberg.


1. Newman DH, Shah KH, Ackernam BE, et al. Communication and perceptions of risk among physicians and patients with potential acute coronary syndromes. Ann Emerg Med 2011;58(4):S210.

2. Lenehan PJ, Esking B, Allegra JR. The percentage of congestive heart failure patients discharged from the emergency department is decreasing. Ann Emerg Med 2011; 58(4):S237.


For more information, contact:

• David C. Seaberg, MD, Emergency Department, Erlanger Hospital, Chattanooga, TN. Phone: (432) 778-6956. E-mail: