Don't Disregard Any Input on ED Patient

Concerns of team come up during suit

Some emergency physicians (EPs) have admitted that they don't take time to read the nursing notes, according to J. Tucker Montgomery, MD, JD, a health care attorney in Knoxville, TN. "Complaints recorded there that go unaddressed, or a particular abnormal vital sign, can come back to bite an EP," he says.

Gregory M. Nowakowski, JD, an attorney with Rogers Mantese & Associates in Royal Oak, MI, warns, "Miscommunication is not a defense to either an EMTALA claim or a malpractice lawsuit."

A nursing note Montgomery reviewed indicated an assessment consistent with saddle numbness, which was not addressed by the EP. "The patient with low back pain was discharged, and the acute cauda equina syndrome was missed," he says. "There was an angry patient and an angry jury, and a verdict for the plaintiff."

If a nurse documents that a patient is "lethargic," and the patient later sues due to a bad outcome from a missed infection or neurological condition, the question will become, "Why didn't the EP pay attention to the nurse's concern?" says Barry E. Gustin, MD, MPH, FAAEM, a Berkeley, CA-based medical legal consultant specializing in emergency medicine and a practicing emergency physician.

"If the nurse writes that the patient was lethargic, and you know that it's not lethargy because the patient was rousable and had a Glasgow Coma Score of 15, then you need to address that," says Gustin.

One EP testified that the ED nurse never told him about a patient's deteriorating condition, recalls Gustin, but the nursing documentation indicated otherwise.

"The nurse said in the notes, 'The doctor was informed,' and the doctor said, 'That's not true, nobody told me anything,'" he says. "If the nurse documented something in real time, the jury will believe they're being truthful. It's hard for the doctor to get out from under that one."

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In another case, just before discharge, an orderly failed to communicate a tarry stool to the EP, and the patient bled out at home, says Montgomery, adding that the family sued and the case was settled. "Some EPs have difficulty accepting input from other staff in the ED," he adds. "The input of the lowest-ranking provider can be as important as the highest."

The EP should take a quick look at the run sheet if the patient comes in by ambulance, advises Gustin. "It may give you vital information that the patient may not divulge, but will come back to haunt you if something goes wrong," he says.

If a patient, the patient's representative, a housekeeper, or anyone else in the ED tells you they've observed something about a patient that should put a "reasonable" person on notice that something bad is happening, then an appropriately qualified medical person needs to check on that patient, urges Catherine Ballard, JD, a partner and vice-chair of the Bricker & Eckler Health Care group in Columbus, OH.

If this doesn't occur and the patient sues, warns Ballard, "this could come up very easily. You can expect the plaintiff's counsel to interview or depose everyone who could have had contact with the patient during the time in question."


For more information, contact:

• Catherine Ballard, JD, Vice Chair, Health Care Group, Bricker & Eckler, Columbus, OH. Phone: (614) 227-8806. E-mail:

• Barry E. Gustin, MD, MPH, FAAEM, Berkeley, CA. Phone: (510) 549-1041. E-mail:

• J. Tucker Montgomery, MD, JD, Knoxville, TN. Phone: (865) 604-3476. E-mail:

• Gregory M. Nowakowski, Rogers Mantese & Associates, Royal Oak, MI. Phone: (248) 691-1614. E-mail: