In addition to concentrating on the five conditions that lead to most ED malpractice claims, there are specific strategies you can employ to reduce the overall liability risk in that department, says Andrew S. Kaufman, JD, a partner with Kaufman, Borgeest & Ryan in New York City. He advises taking these steps:

1. Improve change-of-shift continuity: Many problems arise when patients are handed off from one physician or nurse to another at the change of shift, he says. If you don’t already use a form endorsing the transfer of a patient from one shift to the next, get one. Create a policy stating that the incoming shift must evaluate the patient as a new patient, not just rely on a general statement of the patient’s condition from the outgoing shift. Patients are at great risk if the incoming shift assumes the patient is stable because the outgoing shift didn’t say otherwise.

2. Caution ED staff that the second visit by a patient should raise a red flag: When a patient shows up in the ED after being discharged earlier, the staff should go out of its way to check that patient very carefully. Never dismiss the patient as a whiner. Instead, the ED staff must consider the chance that it missed something on the first visit. Risk managers should enforce a policy that ED staff must always pull the patient’s chart from the previous visit to review it for oversights and in light of the patient’s current condition.

Diane M. Sixsmith, MD, MPH, FACEP, chairman of emergency medicine at New York Hospital Medical Center of Queens in Flushing, adds that when a patient returns to the ED, "he’s giving you a chance to right your wrongs. And juries have no sympathy when you turn them out on the street again."

3. Require a thorough evaluation of the patient even if the ED staff consults the patient’s primary care doctor: The malpractice liability rests with the ED and hospital while the person is your patient. Don’t allow the ED team to let its guard down because it consulted the patient’s primary care physician. "Either the primary care physician comes in and takes responsibility for the patient, or you evaluate that patient as if he had no doctor at all," Kaufman says. "You can’t forego anything just because you talked to the patient’s doctor."

4. Involve the patient’s family when the patient wants to leave against medical advice (AMA): When the patient wants to leave before you can provide a full examination or treatment, the ED staff should counsel against that decision and try to get the patient to sign an AMA document indicating that leaving the ED could be dangerous. But Kaufman says one important point often is overlooked: Get the patient’s family involved in the discussion. "The family will be the one suing you if he dies," he says. "They need to know that you tried your best to get him to stay for treatment."

5. Provide specific discharge instructions about when to return: Discharge instructions often include information on what change in symptoms should prompt a return to the ED, but Kaufman says they often don’t say anything about the patient returning because symptoms remain the same. For some serious conditions requiring emergency care, the symptoms may remain exactly the same until the patient suddenly dies, Kaufman says. He suggests that discharge forms can include two boxes for the physician to check, depending on the circumstances: One can say, "Return to ED if you feel worse," and the other can say, "Return to ED if you don’t feel better."

"I’ve had cases where the patient was discharged and had a bad outcome, and then said he didn’t return to the ED because they didn’t tell him to," he says. "The doctor told him to return if he felt worse, but the patient says, I didn’t feel worse. I just didn’t feel better.’"