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Medical malpractice lawsuits and medicolegal issues are a major concern for physicians and health care institutions. Most physicians expect to become involved in some manner in litigation alleging physician negligence. There are nearly 125,000 active lawsuits in the United States alleging physician malpractice on any given day. To put this number in perspective, consider that there are only 85,000 students currently enrolled in US medical schools. The physician named in a suit, however, may not always be a target defendant. In some circumstances, physicians who have provided treatment to a patient suing another physician may be subpoenaed to testify in court. Physicians may also become involved in litigation by agreeing to present medical opinion.

The filing of a malpractice action is likely to generate a great deal of emotional stress for the defendant physician. This chapter discusses medicolegal problem areas in the emergency department (ED) and suggests ways in which the emergency medicine physician can avoid malpractice litigation.

The true extent of the ED malpractice problem is unknown, partly because EDs and emergency physicians are insured by many different insurance companies that have not pooled their claim information and partly because many claims involve events that occurred not only in the ED but also in other parts of the hospital. It is clear, however, that disputes have increased attention to risk management; the number of ED malpractice claims and the size of malpractice judgments are increasing.

A recent study by the largest physician-owned medical malpractice insurer provided insight into the liability claims alleged against emergency physicians. This study reviewed 332 claims over a 7-year period, from 2007–2013. The majority, approximately 78%, of claims were found to fall within four common categories of patient allegations: diagnosis related, improper management of treatment, improper performance of treatment or procedure, and failure to order medication. The remaining claims involved improper management or performance of treatment, and failures related to medication orders.

Nearly, 57% of these claims centered around issues related to diagnosis. These issues include, but are not limited to, failure to establish a satisfactory differential diagnosis, failure to order necessary or appropriate diagnostic tests, failure to address abnormal findings, and failure to consider available clinical information. Unsurprisingly, several high-risk conditions were associated with these diagnosis-related failures. These include acute cardiovascular accident (CVA), myocardial infarction (MI), spinal epidural abscess, pulmonary embolism (PE), meningitis, and necrotizing fasciitis. The results of this study underscore what many emergency physicians know: failure to establish a diagnosis, delay of a critical diagnosis, or establishing the wrong diagnosis are high-risk scenarios for both patient and provider. The net effect of malpractice suits has been to make emergency physicians, like physicians in general, practice so-called defensive medicine. Modern EDs provide mainly episodic care in a high-pressure environment that affords little time for leisurely contemplation and consultation when the diagnosis or best course of treatment is in doubt. In addition, prompt ...

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