Study of Emergency Department Diagnosis Case Type Malpractice Claims: Abstract

Jacqueline Ross, RN, PhD, Coding Director, Department of Patient Safety and Risk Management

The emergency department (ED) is a fast-paced, high-pressure environment. Diagnostic error is a frequent malpractice allegation against physicians who perform emergency care, one associated with high severity in both patient injuries and financial outcomes. The complexity of the ED setting cannot be diminished as a major factor for increasing the risks of diagnostic error. Following up on a 2011 benchmarking report from CRICO, this 2021 analysis by The Doctors Company researches whether allegations of diagnostic error remain prominent among claims related to care provided in the ED. The purpose of this study was to identify diagnostic error trends in medical malpractice claims where the ED was the location of service and to help physicians and hospitals identify interventions to decrease the severity and frequency of injury in the future.

Study Design

This was a retrospective cohort study of diagnosis-type closed medical malpractice claims from care that occurred in the ED from 2014 through the second quarter of 2019 using closed coded claims from The Doctors Company. A total of 326 claims were included. Hospitals with a bed capacity of 100-299 beds comprised 59 percent of the sample. The CRICO 11-step ED process of care was used to evaluate the care provided.


  • In aggregate, diseases involving either the neurologic or vascular systems accounted for 31 percent of all claims.
  • Failure or delay in ordering a diagnostic test was the most common contributing factor found in claims; this contributing factor was associated with a higher frequency of indemnity payments. CT scans were the diagnostic test most frequently not ordered or delayed.
  • During the ED process of care, the three steps where most diagnostic errors were made were:
    • Ordering of diagnostic tests (53 percent).
    • Consult management (33 percent).
    • Ongoing assessment: Monitoring of clinical status (32 percent).


ED systems and processes can increase or reduce the risk of diagnostic error. But instead of simply asking clinicians to work harder or smarter, what’s needed is the creation of a system of care that optimizes their ability to think and carry out an efficient work-up of a patient. Such a system will help clinicians to establish a differential diagnosis while avoiding cognitive biases like anchoring, reduce delays or failures in obtaining consults that could result in preventable injury to a patient, and encourage ongoing assessment and communication during the initial period of diagnosis. Narrative reviews frequently demonstrated a complex interplay of environmental, clinical judgment, and system factors, which may have contributed to cognitive errors during the diagnostic process.

Given the fast-paced, distraction-filled nature of the ED, this setting might benefit from clinical decision-support tools such as “hard stops” in the electronic medical record that require reassessment after a period of time and/or before discharge. As machine learning becomes more ubiquitous in healthcare, there is an opportunity for diagnostic programs to identify potential diagnoses based on provider notes, labs, etc. which can prompt physicians to order the appropriate testing.

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The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.


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