Medico-legal risk: What physicians working in emergency medicine need to know

At the end of 2022, 5,784 CMPA members were emergency medicine specialists or family physicians who work primarily in the emergency department (Type of Work, or TOW, 82). In a 5-year period (2018 – 2022) ¹, on average, 24.3% of emergency physicians were named in 1 new medico-legal case (legal action, College or hospital complaint), and another 11.7% were named in 2 or more new cases.

Annually, 9.7% of emergency physicians were named in 1 new medico-legal case, and an additional 1.2% were named in 2 or more new cases on average across this 5-year period.

The graphs below compare the 10-year trends in emergency physicians’ (TOW 82) medico-legal experiences with those of the general CMPA membership.

What are the relative risks of a medico-legal case for emergency physicians?

In recent years, emergency physicians had consistently higher College case ² rates when compared to all CMPA members.

Over the 10-year period, emergency physicians had significantly higher rates of legal actions than that of all CMPA members.

In addition to emergency medicine physicians, some family physicians (TOW 73, 78, and 79) also provide care in an emergency department (ED). In the recent 5 years (2018 – 2022), CMPA closed 1,892 cases involving either emergency or family physicians providing patient care in the ED.

What are the most common patient complaints and peer expert criticism? ³ (n=1892)

Complaints are a reflection of the patient’s perception that a problem occurred during care. These complaints are not always supported by peer expert opinion. Peer experts may not be critical of the care provided, or may have criticisms that are not part of the patient allegation. These complaints might not result in a negative finding by a College or court.

Of the 1,892 cases related to patient care in the ED, 822, or 43%, had a peer expert criticism of diagnostic error. The following sections focus on these 822 cases.

What are the most common patient conditions and peer expert criticism involving diagnostic errors? (n=822)

A diagnostic error may be a delayed or missed diagnosis, or a misdiagnosis. The following graph shows the patient conditions most frequently involved in a diagnostic error. The frequency of these conditions are consistent with emergency physicians’ practice patterns and may not reflect high risk diagnoses.

The most frequent peer expert criticism in cases involving a diagnostic error are:

• Deficient assessment
• Failure to perform a diagnostic test or intervention
• Inadequate documentation
• Insufficient knowledge or skill
• Failure to refer
• Inadequate patient monitoring or follow-up

In 54% (445) of the cases involving a diagnostic error, peer experts considered a deficient patient assessment a contributing factor to the diagnostic error. For example:

• Failure to perform a thorough motor and sensory examination of a patient’s hand contributed to a missed diagnosis of a complete transection of both ulnar and medial nerves
• Over-focus on patient’s past history of anxiety, and failure to perform a physical examination or consider significance of abnormal oxygen saturations, contributed to a missed pulmonary embolus

In 40% (330) of the cases involving a diagnostic error, peer experts considered a delay or failure in the performance of a diagnostic test or therapeutic intervention to have contributed to the diagnostic error. Examples include:

• Failure to perform a lumbar puncture or organize a computerized tomography, resulting in the patient’s subarachnoid hemorrhage being misdiagnosed as a migraine
• Failure to repeat an electrocardiogram or cardiac enzymes for a patient with ongoing symptoms contributed to a missed diagnosis of myocardial infarction
• Outstanding diagnostic imaging results missed at patient handover contributed to a delay in a pneumonia diagnosis

What are the top factors associated with severe patient harm⁴ in medico-legal cases? (n=822)

Risk reduction reminders

The following risk management considerations have been identified for physicians providing care in the emergency department:

• Perform an objective and thorough assessment of patients and when appropriate, incorporate clinical practice guidelines and clinical decision rules for investigating common conditions encountered in the ED.
• Take time to pause and reflect on the differential diagnosis, being careful to consider any relevant risk factors, including comorbidities and surgical or family history. Obtain a second opinion if you are unsure of your diagnosis.
• Provide patients with appropriate follow-up and clear instructions (verbal or written), including symptoms and signs that should alert them to seek further medical attention and how urgently to do so. Confirm patients’ understanding of the information being provided, and answer questions honestly and openly.
• Communicate clear instructions during formal written handovers of care that include relevant patient history, pertinent findings on physical examination, differential diagnosis, diagnostic investigations performed, outstanding results, and the next steps in the patient treatment plan.
• For patients with continued or worsening symptoms or those who repeatedly return with unresolved complaints, re-evaluate the diagnostic assumption, repeat the physical examination, and consider alternative diagnoses, ruling out possibilities that may be life-threatening.
• Document differential diagnoses, pertinent positives and negative findings, reassessments, and discharge discussions.

Now that you know your risk…

Mitigate your medico-legal risk with CMPA Learning resources.

• CMPA eLearning:
• Documentation
• Informed discharge
• “Transition in care”, CMPA Good practices
• CMPA workshops:
• Advanced diagnostic reasoning
• Test result follow-up
• CMPA research:
• Diagnostic delays in sepsis
• Medico-legal risk and use of medical directives in the ED
• Medico-legal issues related to emergency physicians’ documentation

Questions?

Please contact [email protected]

Notes

1. 1. 
   It takes an average of 2-3 years for a patient safety incident to progress into a medico-legal case. As a result, newly opened cases may reflect incidents that occurred in previous years.
2. 2. 
   Physicians voluntarily report College matters to the CMPA. Therefore, these cases do not represent a complete picture of all such cases in Canada.
3. 3. 
   Peer experts refer to physicians who interpret and provide their opinion on clinical, scientific, or technical issues surrounding the care provided. They are typically of similar training and experience as the physicians whose care they are reviewing.
4. 4. 
   Severe patient harm includes death, catastrophic injuries, and major disabilities.
5. 5. 
   Patient factors include any characteristics or medical conditions that apply to the patient at the time of the medical encounter, or any events that occur during the medical encounter.
6. 6. 
   Based on peer expert opinions.