Communication Is Major Contributing Factor to ED Malpractice Claims

By Stacey Kusterbeck

Emergency department (ED) malpractice claims frequently contain allegations that delayed diagnoses led to poor outcomes or death. “Many times, the primary contributing factor is lack of communication,” according to Jacqueline Ross, RN, PhD, coding director in the department of patient safety and risk management at The Doctors Company.

Ross and colleagues analyzed 21,101 closed claims from 2010-2019.¹ During the study period, poor communication increased steadily as a contributing factor in malpractice claims. “The findings support other studies illustrating that communication is a major contributing factor associated with malpractice claims and is frequently associated with high-severity injury claims,” says Ross. Some key findings:

• Technical performance was the most common clinical contributing factor.

• Insufficient documentation and delays in communication between providers and patients, and among providers, were the most common nonclinical factors. Staffing issues, policy and protocol issues, and patient monitoring were other common non-clinical factors.

• Communication among providers accounted for most of the communication issues that were contributing factors in emergency medicine claims. In cases involving communication among providers, failure to communicate the severity of a patient’s condition was the most common problem.

“The failures that we see occur during handoffs, during communication with consultants about the patient’s condition, when communicating what the provider is requesting of the consultant, and during communication among members of the care team,” says Ross.

In some ED claims, the patient was never informed about laboratory or radiology results because the patient was discharged before the results became available. “EDs must have a process in place to follow up on laboratory testing and imaging results that are not completed prior to the patient’s discharge,” underscores Ross.

One ED claim involved a patient with abdominal pain, tachycardia, and an elevated lactate level. The patient was ultimately diagnosed with an intestinal perforation. Diagnosis of sepsis was delayed, as was surgery to stabilize the patient. Unfortunately, the patient died. “Communication was not complete about the patient’s condition, including relaying lab results,” says Ross.

Taken as a whole, the study findings suggest that EDs should find ways to improve communication with the healthcare team. “It is essential that handoffs are communicated well. In addition, patient assessment, thorough documentation, and timely requests for consultations are essential,” underscores Ross.

To foster clear communication, EDs can use structured communication tools, such as SBAR (Situation, Background, Assessment, and Recommendation [or Request]). “Providing a clear clinical picture is essential,” says Ross. The ED medical record should include the differential diagnosis, the rationale, the treatment plan, and all discussions with consultants, including the recommendations and plan. “Discharge instructions must be reviewed with the patient and family. The patient must be given the opportunity to ask questions,” she adds. Ross suggests these practices to improve communication at discharge:

• Discharge instructions should be written in plain language, without medical terminology, and verbally reviewed with the patient.

• For patients who do not speak English as their primary language, ED providers should use a translator service to ensure the patient and family understand the plan of care. “Never rely on relatives as interpreters. Confirm with the family that the translator service is adequate, meaning providing communication with the proper dialect,” advises Ross. “Always document that the translator service was used.”

Often, ED providers make decisions with limited information and no previous medical history. “This can contribute to allegations that cognitive bias could have influenced the final diagnosis,” says Ross. “Anchoring bias often happens in ED settings.” ED clinicians may “anchor” on to a particular diagnosis and fail to release the “anchor” even if new data points to a different diagnosis. To avoid this, Ross suggests EPs use these strategies:

• Understand that cognitive bias exists and can influence clinical judgment.

• Consider an alternative diagnosis, order other diagnostic tests, and re-review the patient’s history.

• Seek input from other team members to challenge the initial diagnosis.

• Document clinical reasoning.

Although the claims analysis did not focus on the ED setting specifically, there were some findings that are particularly relevant to EDs, according to Richard Chazal, MD, one of the study authors, a senior cardiologist, and the medical director for Quality, Transformation and Innovation at the Lee Health Heart Institute. One example is that clinicians, including in the ED, tend to focus on liability implications of clinical practices. For instance, an EP may question whether an electrocardiogram (ECG) was read accurately or how well a procedure was performed.

“While that is very important in terms of claims, we found that the non-clinical factors are equally important to the clinical factors. Those are the things that aren’t necessary taught as well in medical school or in training and have more to do with the way we present ourselves,” says Chazal.

Of nonclinical factors that contribute to ED malpractice lawsuits, “communication bubbles to the top,” says Chazal. “For EDs, communication turns out to be as important with liability as clinical skills.” Communication issues that affected ED malpractice claims fell into two categories:

• Communication among providers.

“This carries a little bit more weight with the ED, especially with regard to the severity or acuity of the patient’s condition. How sick is this person?” says Chazal. High-severity claims mainly involved communication with other providers, whereas medium-severity and low-severity claims often involved communication with the patient or family. “For the high-severity claims, it was twice as frequent that the communication deficiency was between providers,” says Chazal. It is not just verbal communication between two providers that goes awry. It also encompasses the use of electronic medical records (and perhaps even AI tools) to communicate what was done. “Patient care is paramount. We don’t want anyone to have a mishap — and we don’t want a lawsuit. But if there is one, having documented what you did in a clear fashion is extremely important,” says Chazal.

• Communication with the patient and family.

When communicating with other providers, the challenge for EPs is to provide concrete information in a concise, accurate manner. “They’ve got to be conveying the right thing, particularly with regard to the acuity of the problem. But with patients, it’s a little bit more of a softer touch. How did you speak to them, and how did you present yourself?” says Chazal.

In the ED, clinicians do not have the benefit of a long-standing previous relationship with the patient. The entire relationship is based only on the ED encounter. In the study, two contributing factors stood out related to communication with patients: poor rapport and a perceived lack of sympathy. “There is not a lot of hard science to demonstrate it, but there’s a general consensus that how well physicians communicate and how good of a rapport they have with the patient influences a decision to sue. It also has to do with whether the patient views the physician as uncaring, or as somebody who really was trying their very best and was kind. We’ve known for some time that does have an influence on whether a suit is going to be filed or not,” says Chazal.

Some medical schools and training programs are emphasizing communication issues. “They are doing a better job. When I went to medical school, no time was spent on communication issues at all. It was something that was assumed,” says Chazal. Even after EPs leave formalized training, they need to continue to improve communication skills. “We as physicians ought to pay very close attention to our colleagues who are advanced practice providers or nurses and mirror behaviors that are particularly effective,” suggests Chazal. Nurses were ranked as the most trusted profession, with 78% of respondents stating that nurses have high honesty and ethical standards, according to Gallup’s 2023 Honesty and Ethics poll.² “And there may be a good reason. Nurses may have better communication skills than some of us,” says Chazal. “There’s a lot for us to learn.”

REFERENCES

1. Kusumoto F, Ross J, Wright D, et al. Analysis of closed claims among all medical specialties: Importance of communication and other non-clinical contributing factors. Risk Manag Healthc Policy 2024;17:411-422.
2. Brenan M, Jones JM. Ethics ratings of nearly all professions down in U.S. Gallup. Jan. 22, 2024. https://bit.ly/4awJcbs