Patient Leaving Without Diagnosis? Avoid Suits By Clarifying Limitations

Charts often lack EP's thought process

The most significant legal risks in the ED are not those associated with boarding patients or high-acuity traumas, but rather, those associated with relatively stable patients with undifferentiated diagnoses, according to an analysis of malpractice cases occurring from 2006 to 2010 from Crico Strategies' Comparative Benchmarking System database. (To request a paper or electronic copy of the report, Malpractice Risks in Emergency Medicine, go to

For these patients, inaccurate assessments and loss of critical information between caregivers are noted to have led to errors in diagnosis and premature discharge, reports Gretchen Ruoff, MPH, CPHRM, program director of patient safety services for Crico Strategies, a Cambridge, MA-based patient safety and medical professional liability company.

Missed and delayed diagnoses were the most prevalent allegation cited in 47% of the 1,304 cases studied. "We started out looking broadly at all cases with a primary allegation relating to emergency medicine, and found that almost 50% of ED cases involved a missed or delayed diagnosis," says Ruoff. "The injuries in those cases were more severe than those resulting from other ED cases, thus resulting in higher payments."

The key drivers of missed or delayed diagnosis cases were inadequate assessments, judgment errors related to ordering a test or image, communication breakdowns among team members, and unreconciled clinical information at discharge.

Stephen G. Reuter, JD, an attorney with Lashly & Baer in St. Louis, MO, has defended a number of cases involving a bad outcome after patients were discharged from the ED without a clear diagnosis.

"I have seen medical records where the emergency physician's diagnosis is 'pain' or 'headache.'" That's not a diagnosis, that's a symptom," says Reuter. "I've also seen a number of records where the EP is sued and there is no diagnosis at all. If I'm a plaintiff lawyer, I'm jumping all over that."

Reuter says that an emergency physician (EP) should rethink discharging a patient if their diagnosis is a sign or symptom rather than a source of the sign or symptom, or should at least have a plausible explanation for the patient's particular symptoms, whether headache, back pain, or epigastric pain.

"Since we work in the hospital, we have access to every test the hospital can possibly run available. It's truly an overwhelming array," says Bruce Wapen, MD, an emergency physician with Mills-Peninsula Emergency Medical Associates in Burlingame, CA. "Yet, at the end of the day, there is a fairly significant subset of patients where we have not found anything that we can say caused the problem."

Onus on Patient

While the EP might admit an elderly patient with unexplained chest pain who doesn't look well for observation, he or she will probably discharge a younger patient with the same symptoms and no history or risk factors for cardiac problems.

"Now, how do you protect yourself? The primary way is in the veracity of the discharge instructions," says Wapen. "They need to be time-specific. They can't say, 'Come back as needed.' That's not going to cut it."

At the very least, discharge instructions should always state, "Return to the ED immediately for new or worsening symptoms, or if your symptoms don't improve," says Wapen. "Now, anybody with a lick of sense would come back if they have a fever they didn't have before, if their pain gets worse, or if they don't get better," he says. "Otherwise, the patient may say, 'They saw me two days ago and they didn't figure it out; there's no point in going back.' Without clear, concise instructions, the onus is on you."

For instance, the EP may tell the patient, "Go see Dr. Smith tomorrow. Call the office and let them know you were seen in the ED for these symptoms." "The more documentation you have with people in the ED having had that conversation with the patient before they were released, the better off you are," says Reuter.

If you are concerned about a time-dependent diagnosis, refer the patient to the primary care physician (PCP) or to a specialist within one to two days and refer to a specific name, address, and phone number, advises Wapen. If the patient doesn't have a PCP, the EP might tell the patient to come back to the ED for a recheck in one to two days, he adds. This protects those patients who otherwise can't arrange follow-up.

While ideally the EP calls the PCP to arrange follow-up, he or she also has an obligation to manage multiple patients simultaneously, notes Robert B. Takla, MD, MBA, FACEP, chief of the Emergency Center at St. John Hospital and Medical Center in Detroit, MI.

"The hard part comes when the patient doesn't have a physician," he says. In this case, the EP should play a part in the solution, such as arranging a clinic appointment, but if the EP has clearly stated, 'You need to follow-up with a doctor within three days,' the onus is still on the patient," says Takla.

Convey Limitations

"It's obviously preferable to get a diagnosis before you release someone from the ED. But often, that's not reality," says Reuter. "When a patient is discharged without a diagnosis, the plaintiff and defense attorney experts will argue about what the standard of care is."

The EP's duty is to rule in or out life-threatening problems that might have caused the patient's complaint, advises Wapen. "For chest pain, the things that have the potential to kill you are heart attack, collapsed lung, pneumonia, pulmonary embolism, and aortic dissection. They are all in the differential diagnosis," he says. "That said, we still wind up with lots of chest pain patients in whom we have no answer."

Wapen advises using the term "diagnostic impression" instead of "diagnosis." "Other doctors in private offices have the luxury of time and can wait for the patient to come back to the office after having a trial of some therapy or a consultation or two," he says. "In the ED, we have a short window of opportunity of a few hours or less to do the tests we need to do and come to a decision. It is not always possible to arrive at a firm diagnosis in that limited time frame."

EPs are "not held to a standard of perfection. That is an important concept," says Wapen. "The plaintiff attorney may act as though EPs are never allowed to miss a diagnosis, but that's not the case."

The EP is held to a standard of care that is what a reasonable physician with similar training would do in the same or similar circumstance, says Wapen. If the EP has done all the appropriate testing and still doesn't have a diagnosis, the EP is likely to be within the standard of care to discharge the patient with instructions to follow-up with a specific doctor in a specific timeframe, he adds.

"There comes a point where pursuing additional diagnostic studies is neither appropriate nor in the patient's best interest," Takla says. "The list of differential diagnoses may be very long. What we need to do as EPs is make sure life- and limb-threatening things are ruled out, or explain why they are so unlikely that they don't warrant investigation."

Takla says that honesty with the patient is paramount, and the EP should state clearly that his or her role is to rule out any life- or limb-threatening emergencies. "We should not make a diagnosis just for the sake of making a diagnosis," he says. "Making that diagnosis when you're not sure what it is has more liability than saying to the patient, 'I'm not sure what the cause is.'"

An EP might tell a patient, for instance, that they don't know the cause of his or her abdominal pain, but that diagnostic tests didn't suggest anything indicating that the pain is dangerous. Next, the EP needs to emphasize the need to follow-up with a primary care physician or return if symptoms worsen.

EPs sometimes feel pressured to come up with a diagnosis because patients don't like leaving the ED without knowing what's going on, explains Takla. Instead of admitting they don't know the cause of the abdominal pain, they might diagnosis peptic ulcer disease, gastroesophageal reflux disease, or irritable bowel syndrome. "Therein lies the danger of telling the patient a diagnosis, which the patient then carries with them," Takla says. "I think that's unethical and inappropriate."

Indicate Decision-making

Reuter says that too often, records reveal nothing about what the EP was considering in terms of the cause of a patient's symptoms. In this case, the defense attorney has to find other places in the record to piece together in retrospect what the EP was thinking.

"Let's say the EP orders or prescribes [sumatriptan] for the patient with a headache and happens to write down 'history or migraine.' We can cobble together a diagnosis, even though it wasn't in the chart," he says.

Takla has reviewed many charts involving ED patients discharged without a clear diagnosis in which the EP's care was appropriate but lacked any documentation of medical decision-making. "That is the number one problem I see in the cases I review. From reading the chart, it has to be clearly understood that the dangerous stuff was considered and ruled out," he says.

Takla adds that a set of discharge vitals is often missing from charts. "If somebody comes in with abnormal vitals and you send them home without a repeat of normal vitals, that is a little more difficult to defend," he says.

Wapen recently cared for a patient who reported a two-week history of a gurgling sound in the left ear. He considered an atypical presentation of a carotid artery lesion. However, it was Saturday and the vascular lab at his hospital wasn't open.

When the patient returned on Monday, as instructed, the carotid Doppler ultrasound showed a lesion. The vascular surgeon was consulted, and a CT angiogram of the head and neck revealed a 4 cm dissection of the internal carotid.

Wapen says that if the patient had had a bad outcome before returning to the ED, documentation indicating the nondiagnostic presentation, consideration of possible diagnoses, and appropriate care given the limitations at his facility would have made a lawsuit defensible.

"If a plaintiff attorney claimed that a reasonable physician would have sent the patient by ambulance to a vascular lab for an immediate study, we would need to provide documentation that the way we did things was within the standard of care," he says.


For more information, contact:

• Stephen G. Reuter, JD, Lashly & Baer, St. Louis, MO. Phone: (314) 436-8326. E-mail:

• Gretchen Ruoff, MPH, CPHRM, Program Director, Patient Safety Services, Crico Strategies, Cambridge, MA. Phone: (617) 679-1312. E-mail:

• Robert B. Takla, MD, MDA, FACEP, Chief, Emergency Center, St. John Hospital and Medical Center, Detroit, MI. Phone: (313) 343-7071. E-mail:

• Bruce Wapen, MD, Foster City, CA. Phone: (650) 577-8635. E-mail: