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Risk Management, Malpractice, Medical Malpractice, Medicolegal Issues, Medical Laws, Malpractice Prevention, Effective Medicolegal Documentation

  • See Also
  1. Emergency Medicine Pitfalls
  2. Post-Surgical Pitfalls
  3. Medical Cognitive Errors
  4. Medical Documentation
  5. Emergency Department Patient Satisfaction
  6. Against Medical Advice
  7. Medical Elopement
  8. Decision-Making Capacity
  9. Health Information Privacy (HIPAA)
  10. Patient Handoff (SIGNOUT Mnemonic)
  11. Informed Consent
  12. Defensive Medicine
  • Types
  • Malpractice claims
  1. Negligent non-disclosure (Informed Consent)
  2. Negligence: Breach of standard of care (what a reasonable physician would do in a similar case)
    1. Failure to diagnose
      1. Acute Myocardial Infarction
      2. Appendicitis
      3. Fracture
      4. Foreign Body
    2. Delay in diagnosis (e.g. Breast Cancer)
    3. Dropped ball
      1. Failure to follow-up on tests (labs, radiology)
      2. Failure to monitor
      3. Inadequate coverage while on vacation
  • Epidemiology
  • Pediatric Malpractice Cases
  1. Of pediatric Malpractice cases, 50% are age 0 to 2 years
  2. Most common pediatric Malpractice cases (most often diagnostic error)
    1. Meningitis
    2. Appendicitis
    3. Arm Fractures
    4. Testicular Torsion
  3. Pearls
    1. Give good return precautions (e.g. fever, increasing pain, Vomiting)
    2. Set up close interval follow-up (e.g. 12 hours) or observation in unclear cases
    3. Document the absence of signs (e.g. no meningeal signs or rash)
    4. Examine the Testicles in males presenting with Abdominal Pain
  4. References
    1. Weinstock in Herbert (2019) 19(1): EM:Rap 10-11
    2. Najaf-Zadeh (2008) Acta Paediatr 97(11):1486-91 +PMID:18540902 [PubMed]
    3. Selbst (2005) Pediatr Emerg Care 21(3): 165-9 +PMID:15744194 [PubMed]
  • Risk Factors
  • High risk areas
  1. Labor and delivery
  2. Medication reactions
  3. Pain management
  4. Sexual misconduct
  5. Inadequate supervision of mid-level practitioners
  6. Night shits (decreased performance, esp. later in shift)
  1. Prepare well for both deposition and trial Testimony
    1. Practicing questions and answered beforehand
    2. Questions should be anticipated and answers well thought out
  2. Listen carefully to questions and respond with focused answers
  3. Answer appropriately and avoid evasiveness
  4. Be polite and likeable, humble, caring and kind (avoid arrogance)
  5. Know the facts of the case and the background Medical Literature
  6. Speak in common, non-technical english
  7. Broad plaintiff attorney questions should be answered starting with "it depends on the circumstances..."
  • Course
  • Malpractice Cases
  1. Three possible courses
    1. Case or client may be dropped
    2. Case goes to trial
    3. Case settled out of court
  2. Case Settlement
    1. Malpractice insurer may decide to settle regardless of provider's wishes
      1. Settlement may be preferred when risk of poor publicity or jury Perception of case or provider
      2. Consent-To-Settle Clause
        1. Malpractice contract clause requires medical provider's approval for settlement
      3. Hammer Clause
        1. Malpractice contract clause that activates if provider declines settlement despite insurers intent
        2. Clause dictates that provider is responsible for payment above proposed settlement
    2. Settlement results in reporting provider to National Provider Database
    3. Settlement is often pursued even when providers are not at fault
      1. Settlement results in fast resolution (compared with years for trials)
      2. Settlement is predictable, while juries are not
  3. References
    1. Swaminathan and Pensa in Swadron (2021) EM:Rap 21(12): 11-2
  • Prevention
  1. Documentation (80% of cases are determined by this)
    1. See Medical Documentation
    2. See Informed Consent
    3. Document the chief complaint and related history
      1. Address the patient's concern
        1. What prompted the emergency visit? (e.g. why now?)
      2. Address the presentation (and its differential diagnosis and pitfalls)
        1. Address the related history thoroughly (e.g. Chest Pain pleuritic, exertional, crushing or back radiation)
        2. Address contributing factors (e.g. past medical history, Family History, medications)
      3. Address the patient's understanding of the evaluation in the context of their presentation
        1. What are the limits to testing, and the residual uncertainty after a negative evaluation?
    4. Document thoughtful medical decision making
    5. Document adherence to Clinical Practice Guidelines, and clear rationale when diverging from guideline
    6. Maintain a consistency in documentation between triage, nursing and medical provider
  2. Maintain good communication with patients, families and practice partners
    1. See Patient Communication
    2. See Patient Handoff (SIGNOUT Mnemonic)
    3. See Consultation
    4. Communication breakdown is associated more with Malpractice, then the injury sustained
    5. Increase bedside time on evaluation including exam, and discussing treatment, Patient Education, precautions
    6. Emergency Department crowding and nursing flow can interrupt communication and raise error risk
  3. Practice standard of care medicine
    1. See Medical Cognitive Errors
    2. Stay current
    3. Know local practices and protocols, and follow Clinical Practice Guidelines
    4. Refer or consult when appropriate
    5. Avoid anchoring to triage class (Level 3-5 or fast track patients may have serious conditions)
  4. Rounding
    1. Evaluate and reevalute in a timely and thorough manner
    2. Emergency department patients are the responsibility of emergency department providers
      1. ED providers assume primary responsibility until a patient is physically transferred from ED
      2. Continue to re-evaluate until patients are physically transferred out of the emergency department
        1. Includes patients boarding in the Emergency Department until medical ward bed availability
        2. Includes patients awaiting Consultation in the Emergency Department
  5. Phone
    1. Do not leave HIPAA protected information on a phone answering machine (leave a message to call back instead)
    2. Avoid telephone advice that delays emergency care
      1. Self-care measures are reasonable to offer (but do not replace clinical evaluation)
  6. Medications
    1. Be aware and counsel regarding medications with black box warnings
    2. Review Drug Interactions when prescribing new medications
    3. Add precautions to the prescription for sedating medications
      1. Example: Do not drive or operate machinary after taking this medication
    4. Do not prescribe controlled substances to family members, friends or yourself
    5. Do not rely on pharmacy warnings and instructions
      1. Inform patients about important medication risks and adverse effects
      2. Document that you discussed those warnings (consider using a macro phrase in documentation)
  7. Examination
    1. Expose relevant areas for examination
    2. Best exam is with patient changed into gown (aside from isolated extremity or head/neck complaints)
  8. Tests and Vital Signs
    1. Order tests specific and appropriate for the presenting complaint
      1. Avoid ordering tests unrelated to acute care visits (e.g. emergency department visits)
      2. Justify the tests ordered and interpret them in the documentation (medical decision making)
      3. Avoid perseverating over not ordering a study (obtain additional evaluation or testing when in doubt)
      4. Consider more intensive evaluation in those whose history and exam is more limited
        1. Consider in the evaluation of age extremes (very young or old)
        2. Consider neurologic deficits, altered, language barriers
    2. Repeat diagnostics if indicated
      1. Repeat electocardiograms every 15 minutes if nondiagnostic in ongoing Chest Pain and suspected ACS
      2. Repeat Lactic Acid after 2 hours, following initial intervention
    3. Review discharge Vital Signs and recheck/reevaluate abnormal values (especially Tachycardia)
    4. Review all results prior to discharge
      1. Tests, Imaging and EKGs should be reviewed in real-time as they are returned
    5. List for the patient which labs are pending and how they should obtain those results (e.g. follow-up clinic)
      1. Ordering provider is ultimately responsible for tests results
      2. Employ a consistent system for tests resulted after discharge from emergency department or hospital
      3. Contact a patient with critical results immediately
        1. Ask police for assistance to go to home if unable to contact patient
  9. Diagnosis
    1. Avoid specific, benign diagnoses when the diagnosis is unclear
      1. Example: Diagnose RLQ Abdominal Pain instead of Gastroenteritis
      2. Benign diagnoses may confer false reassurance and dissuade prompt return for worsening
  10. Discharge Instructions
    1. See Discharge Instructions
    2. Give written Discharge Instructions, review with patient, and document the discussion
    3. Discuss pending results and the need for follow-up
    4. Describe imaging and lab findings that need follow-up
    5. Highlight the test results that are still pending
    6. Highlight the residual uncertainty and risk of adverse events even after a thorough evaluation
      1. Emphasize return precautions for worsening or persistent signs and symptoms
    7. Arrange scheduled follow-up
  11. Transfers (EMTALA)
    1. All patients, regardless of ability to pay, are entitled a medical screening examination and stabilization measures
      1. Physicians on call for this purpose cannot refuse to see the patient
    2. Patients can request to be transferred to another facility
    3. Stable patients may be transferred to any facility
    4. Unstable Patients may only be transferred to a higher level of care
      1. Accepting higher level of care facility cannot refuse transfer if services are available
  12. Early departures from care (high risk)
    1. See Against Medical Advice
    2. See Medical Elopement (and wandering)
    3. See Decision-Making Capacity
    4. Document AMA discussion, including reason for departure (quote patient where possible)
    5. Document Clinical Sobriety and decision making capacity
  13. Medical residents
    1. Medical residents are held to the same standard of care as a fully-trained physician with an unrestricted license
    2. Standard of care practice by a resident assumes supervision by their faculty
  14. Risk Management notification
    1. Notify Risk Management at the time of a high risk incident
    2. Early disclosure to patients and their families per Consultation with Risk Management
  15. Apology
    1. Medical providers are not perfect and we will make mistakes regardless of stringent safeguards
    2. Apology is not an admission of fault, and can be an expression of empthy
    3. Honest and heartfelt communication with patients and their families can be therapeutic to both families and providers
    4. CARE programs (Communication, Apology and Resolution) have been developed strategies for this approach
      1. Sands in Battles and Reback (2017) Advances in Patient Safety and Medical Liability, AHRQ,
        1. https://www.ncbi.nlm.nih.gov/books/NBK508081/
      2. Massachusetts Alliance for Communication and Resolution following Medical Injury (MACRMI)
        1. https://www.macrmi.info/
    5. References
      1. Swaminathan and Smulowitz (2020) EM:Rap 20(10): 5-6
      2. Smulowitz (2020) BMJ Qual Saf 29(4):345-7 +PMID:31796576 [PubMed]
  • References
  1. Dorsam and Ponce (2021) Crit Dec Emerg Med 35(10): 9
  2. Henry (2013) Avoid Being Sued, EM Bootcamp, CEME
  3. Strayer in Herbert (2015) EM:Rap 15(8): 4-5
  4. Weinstock and Henry in Herbert (2014) EM:Rap 14(4): 3
  5. Weinstock, Kitrik and Clause in Herbert (2015) EM:Rap 15(1): 12-14
  6. Weinstock and Swaminathan (2025) Risk Management: Chief Complaint, EM:Rap, 7/7/2025