Minimizing emergency department malpractice risks

By Pamela S. Gilman

Many emergency department malpractice claims are pursued by patients who have a bad outcome resulting from an unrelated condition following an ED visit.

What steps can ED physicians and nurses take to minimize the risk of a misdiagnosis medical malpractice lawsuit?

Our firm recently obtained a jury defense verdict in a case involving a man who visited an ED with post-surgical concerns about a superficial wound infection. The patient was discharged and died 10 days later from an infectious process. The triage notes became a primary focus at trial.

Because patients may describe their symptoms differently to the triage nurse, ED nurse and ED physician, the physician should always review and acknowledge all of the information that is recorded that differs from what he or she is told.

The suit could have been avoided if the physician and nurse explicitly indicated in the chart that they considered the triage nurse’s note, that they fully evaluated the patient, and they found no evidence of an infection.

In addition to noting in the ED chart other caregiver’s findings, ED medical professionals may want to take the following steps to minimize professional liability risks:

  • Quote the patient. Place quotation marks around the words used by a patient to describe his or her condition. When a patient alleges in a med-mal claim that ED medical professionals did not address his medical complaint, probably the strongest defense is documentation containing the plaintiff’s own description of his or her specific complaint. For example, instead of documenting, “Patient complains of infection,” the triage nurse might document “Patient says, ‘I think the wound edges look red.’”
  • Supplement template charting with written entries. Instead of simply checking off boxes on a template chart, ED medical professionals can supplement the chart with specific findings. Adding in their own wording helps to confirm that they were caring and thorough.
  • Re-evaluate the patient’s condition before discharge if the patient is in the ED for an extended period of time. Noting the patient’s condition at discharge can help establish he or she was stable at the time of discharge. If an ED patient coincidentally develops a medical condition soon after discharge, the patient will have an uphill battle arguing that he or she shouldn’t have been discharged if the ED medical professionals addressed the symptoms presented in the ED, and the patient made no new complaints at the time of discharge. If a patient waits in the ED for hours, a plaintiff’s attorney – in the absence of any notation of the patient’s condition at discharge – could argue that the patient’s condition changed while waiting.

Pam is administrative partner of Barton Gilman’s Boston office. She focuses her practice on defending medical professionals against professional liability claims.