Medical Malpractice Insights: Excellent documentation supports standard of care and avoids lawsuit

Here’s another case from Medical Malpractice Insights – Learning from Lawsuits, a monthly email newsletter for ED physicians. The goal of MMI-LFL is to improve patient safety, educate physicians and reduce the cost and stress of medical malpractice lawsuits. To opt in to the free subscriber list, click here. Stories of med mal lawsuits can save lives. If you have a story to share click here.

Chuck Pilcher, MD, FACEP

Editor, Medical Malpractice Insights

Editor, Med Mal Insights

Excellent documentation supports standard of care, avoids lawsuit

Vertebral artery CVA leaves patient disabled. Could more have been done?


Facts: A male in his early 60’s develops sudden onset of left facial droop and dysarthria. His family calls 911, and he is transported to the ED. His symptoms have improved on arrival 37 minutes after onset. He has a past history of atrial fibrillation and was on ASA and/or warfarin until a GI bleed 5 years earlier. Initial BP is 220/110. Code Stroke is called and he is seen by a neurologist within 10 minutes. Labs are within normal limits. CT and CTA are both completed within 89 minutes after symptom onset and demonstrate a distal left vertebral artery occlusion, possibly due to a dissection. He continues to improve and remains stable with a BP of 158/74. His NIHSS is 1 (mild dysarthria only). He is admitted with a diagnosis of brainstem stroke and treated by the neurologist with ASA only. Four hours after admission, he has a brief run of atrial fibrillation and left facial numbness. Eight hours after arrival, he is found non-responsive with posturing and drooling. A repeat CTA shows that the obstruction has now moved to the basilar artery resulting in reduced brainstem perfusion. The neurologist re-assesses the patient and treatment plan, begins tPA, and consults a thrombectomy-capable tertiary center. Arrangements are made for transfer by fixed-wing air, and he arrives 4 hours 15 minutes later [despite the receiving hospital being only 80 minutes away by freeway]. He undergoes a thrombectomy, but his outcome is poor. The family consults an attorney who has the records reviewed by an EM expert before filing a lawsuit.

Plaintiff: The family’s concern is that a delay in appropriate treatment led to his poor outcome. They question whether he should have been treated earlier with tPA or transferred for thrombectomy.


The documentation of the encounter is superb:
* ED physician: “The risk of complications leading to significant morbidity or mortality was explained to [patient and family] as severe.”
* Neurologist (in ED): “I am concerned that this occlusion could be due to a dissection… embolism… [or] atherosclerotic thrombosis… but no atherosclerosis is seen in his other vessels… I will treat him with ASA rather than anticoagulation because I cannot be sure he had a dissection, and because ASA is a good treatment for all possible etiologies being considered. I am not administering tPA because his NIHSS score is only 1. The patient does not require transfer for clot retrieval for the same reason.”
* Neurologist (1 hr. later): “I have reviewed the case with [tertiary hospital stroke specialist] who verified that … ASA may [have] lesser risk of hemorrhage and is okay.”
* Neurologist (6 hr. later): “I now think the patient’s initial VA occlusion was embolic, due to paroxysmal a-fib… I am giving tPA now because the risk of hemorrhage is outweighed by the potential benefit of survival/avoidance of being locked-in and permanently paralyzed. I consulted [the tertiary stroke center] to try a thrombectomy… and the family understands that he is receiving tPA outside the usual window.”

Result: Based on excellent documentation of thoughtful medical decision making, the case was found to be defensible. No lawsuit was filed.



  • Document! Document! Document! We cannot over-explain our medical decision making (MDM). It is our best defense against a med mal lawsuit.
  • Treatment of vertebral/basilar stroke is less firmly established than for stroke in the carotid artery distribution.
  • It is not malpractice to be wrong or choose what later may be found to be a less-preferable treatment option. That is a judgement call, not negligence, but our documentation must support our choice.
  • What is the fascination with air medical transport when ground transport can be accomplished quicker with fewer transfer/handoff points – especially al 2:30 AM – even though it did not affect the outcome?



Medicine is a science of uncertainty and an art of probability.

William Osler


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