5 Strategies To Head Off Malpractice Claims in the ER

I have always had an interest in risk management in the ER, a world in which it is a statistical inevitability that there will be bad outcomes. This interest stems from my fundamental belief that Emergency Physicians are well-intentioned, morally upright individuals. And so it frustrates me when some bad outcomes lead to malpractice litigation.

That said, my experience as an expert witness in over 30 medical malpractice cases and as chair of our Risk Management Committee has taught me that, as in health care in general, Ben Franklin’s famous dictate that “an ounce of prevention is worth a pound of cure” is true when it comes to malpractice prevention as well.

Though bad outcomes and litigation are to some degree inevitable, there are some things an Emergency Medicine provider can do to try to mitigate the risk. With every patient I care for, I run down a Risk Management Checklist:

1. Vital Signs. Almost 90% of medical malpractice cases involve one vital sign that is markedly abnormal. Most often, it is the pulse rate (75%). Some risk experts think we could eliminate almost 50% of lawsuits by not discharging a patient with tachycardia. I review the discharge vital signs on every patient.

2. Nurses Notes. Unfortunately, nurses sometimes chart entries that are not in accordance with our observations or findings. It is critical to review what nurses write in the chart. If the nurse documents the patient complains of a symptom, even if the patient didn’t relay that symptom to you, by all means address that symptom with the patient.

3. Repeat Exams. It never ceases to amaze me how dramatically patients can change over the course of a few hours. Document a repeat exam prior to discharge. At the very least, it shows what a thorough dedicated practitioner you are.

4. Closing the Loop. By arranging prompt follow up you are affording your patient another chance at timely diagnosis and intervention. For example, a number of years ago we had a case of a healthy 50 year old man who presented with 3 days of severe headache. His CT scan and LP were normal. His blood pressure was quite elevated. The ED physician arranged for a follow up visit the next day with an Internist to address the blood pressure. At this office visit, the Internist noted the patient had ptosis, which had not been present in the ED. He was referred back to the department, where he was diagnosed with a Carotid Artery dissection. Therapy was administered and the patient was able to avoid a potentially devastating stroke.

5. If you don’t know the exact diagnosis, say so. If you’re not certain why a patient has chest pain, it is best to tell them this, rather than make a guess such as “esophagitis” or “pleurisy”. By giving the patient an exact diagnosis, you are encouraging them NOT to follow up, and potentially leading them away from the proper diagnosis. Plaintiff’s lawyers make a big deal about this. I will often tell a patient something like, “I don’t know exactly the cause of your symptoms. One possibility is irritation of your esophagus from excess acid. However, I’d like you to see a Cardiologist tomorrow morning for a complete evaluation. If this evaluation is ok, then make an appointment with the referral GI specialist next week”.

Those five items comprise my Risk Management Checklist. I’ll give one final “Bonus Pearl”- Never discharge a patient who is unable to eat, drink, or walk. Vertigo patients, for example, should leave the department on their own two feet, not in a wheelchair. Also, ALWAYS review the EMS run sheet on every patient who takes an ambulance in to the ED.