There are common threads in emergency room errors, says Gluckstein's Jan Marin

This article was produced in partnership with Gluckstein Lawyers.

Mallory Hendry of Canadian Lawyer sat down with Jan Marin, senior associate and lawyer at Gluckstein Lawyers, to discuss the ER errors she most commonly sees in her cases.

Broadly speaking, the large portion of Gluckstein Lawyers' medical malpractice cases come from emergency room errors, "and from my perspective, it's because of the speed and the volume with which patients are dealt with," says Jan Marin, senior associate and lawyer at the firm.

While most people seen by emergency physicians have no serious issues and can be managed and discharged, a smaller subset of patients will have a serious underlying pathology. The main challenge of emergency medicine is diagnostic: not all serious issues have a clear presentation or are reasonably obvious based on history or physical exam. Some require further investigation to determine what's going on, and if clues — or their significance — are missed, significant morbidity and mortality for the patient may ensue.

There's no question strains on the health care system are a factor in  some of these cases and there may be systemic issues rather than "something that can be pinned on an individual physician doing their best in a difficult circumstance," Marin says.

"But it's not the patient's fault either," she adds. "They should be able to come to the ER and expect that serious issues will be identified and managed appropriately."

Limited resources must be managed appropriately, and failure to have a broad differential diagnosis and rule out more serious issues can have catastrophic consequences, as Marin has seen in her cases time and time again.

Common emergency room errors

One common error is missed nerve injuries, where a patient is diagnosed with a laceration, stitched up and sent on their way. If a nerve injury isn't identified and repaired shortly after it occurs, the outcome can be terrible, Marin notes. Another example is back pain — while the vast majority patients have no underling pathology, knowing when to consider and rule out things like spinal epidural abscess, which can cause paralysis and is a medical emergency is important.

There are also cases of a missed ischemic limb or ischemic bowel, which if not identified and dealt with, can cause significant morbidity including loss of a limb or death. In one case, Marin's client required amputation of their hand because of missed  ischemia. Serious adverse outcomes like this underscore why thorough assessment by the doctor is so important.

"Misdiagnosis is a common cause of emergency room error, but there's also improper testing, , misinterpreted results, lack of follow up and even poor monitoring while in the hospital," Marin says. "I've had cases where an infection, which ultimately was sepsis, wasn't identified despite the fact the patient had significant tachycardia and hypotension, which indicated something more serious might be going on and were not explained by the diagnosis given. The most serious conditions on the differential diagnosis needs to be excluded.”

Another all too common occurrence in the ER are missed strokes or delayed/missed treatment. There's a very short window of time to administer a ‘clot busting’ medication. Identifying which patients require the medication and performing the necessary diagnostic tests requires ER staff to work quickly and diligently. . Even if the patient gets to the ER in time, there could be a bottleneck in triage, for example, that delays treatment. The error might be in the triage nurse not pushing the person through as someone who needs time-sensitive treatment, and there may be liability there, Marin says.

"When you do everything you can to get there in the right amount of time, you should be able to expect to get the treatment you require," she says. "Most of our stroke cases have an ER component — whether misdiagnosed, delays in treatment, delay in imaging or misread imaging."

Lab errors are also occur — for example, a toxic result was found in a blood test, wasn't communicated properly to the healthcare team, the person was discharged, and it ultimately led to a fatality — and there can be medication errors in an emergency room as well. Another unfortunate error is a misattribution of complaints to mental health, and not considering an underlying medical pathology.

Marin also has clients who claim that their care was negatively impacted by elements of profiling or implicit biases such as racial, socioeconomic or gender-based. While her experience is anecdotal, there have been incidents that support those claims as a much further-reaching issue. For example, in 2020, an Indigenous woman in a Quebec hospital broadcast her experience through a Facebook Live video, showing hospital staff swearing at her, dismissing her complaints and accusing her of being on drugs. The woman ended up dying, and her death is the subject of a coroner's investigation and an administrative probe. The Quebec government denied the incident was an example of systemic racism but advocates, experts and other Indigenous patients who have experience with the health care system disagree.

"While all medical negligence cases must be rooted in the medicine, there are a lot of times I can't help but wonder what elements of the care were impacted due to  prejudgment or unconscious bias against a particular population," Marin says.

The red flag of unscheduled return visits

Patients who return with an unscheduled visit within 72 hours of emergency department treatment should be recognized as high-risk patients — but too often, the significance of a return visit is overlooked.

In a recent case, Marin's client returned to the emergency room a total of five times within that 72 hour window, four of which were unscheduled, and was discharged every time. She ended up paralyzed. Marin notes that return visits can be an indicator of more seriously pathology, and should be treated as such. A study by Sauvin G. et al. found a second visit correlated with adverse effects for 30% of the patients observed, and an article by S. Nuñez, A. Hexdall and A. Aguirre-Jaime stated over 50% of the patients in their study who returned had a prognostic, diagnostic, treatment or follow up error and that a single return was a significant marker for adverse outcomes.

"In my experience, the return visit can be cursory because there's an assumption the person is complaining, seeking drugs or didn’t listen to what was said the first time,” Marin says. “But right away, it should tell the physician there’s something more here. The mindset should be to widen the search for a serious cause which includes taking a more detailed history."

Overall, the job of an emergency room physician is difficult.CO. Throughout her experience with ER error cases, the common thread is the importance of doctors having a broad differential diagnosis and ruling out the most serious causes — that critical piece can't be overstated, Marin notes.

"It's true that the vast majority of patients they see aren't going to have a significant pathology — but if they miss one, there can be catastrophic consequences.”

Jan Marin’s personal Injury practice is focused on medical malpractice and professional liability. She is a dedicated and passionate advocate for her clients and their families.