Medical Malpractice Insights – Misdiagnosis of Perforated Ulcer is not Malpractice

Author: Chuck Pilcher, MD, FACEP (Editor, Med Mal Insights) // Editors: Alex Koyfman, MD (@EMHighAK) and Brit Long, MD (@long_brit)

Welcome to this month’s 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.

Chuck Pilcher, MD, FACEP

Editor, Med Mal Insights

Misdiagnosis of perforated ulcer is not malpractice

Good documentation prevents lawsuit

Facts: An adult female presents with a 4 month history of abdominal pain presents to the ED when that pain suddenly worsened. She admits to having taken an undocumented amount of ibuprofen recently for the pain. She has slight nausea but denies vomiting. Exam shows generalized tenderness without guarding or rebound. Lab workup includes CBC, LFT’s, lipase, abdominal films, and an upright CXR. The latter show no free air. The WBC is 11,500. She is treated with a GI cocktail and small amounts of ondansetron, hydromorphone, and ketorolac. A thorough differential diagnosis including “ulcer” is documented, as is excellent medical decision making, including the rationale for not ordering a CT scan. She feels more comfortable, is discharged with a diagnosis of “abdominal pain”, and advised to return in 8-24 hours if her pain does not improve. She returns the next day. This time a history of heavy alcohol use is elicited. A repeat abdominal series shows free air under the diaphragm. She is admitted, undergoes multiple surgeries, develops sepsis, and spends nearly 2 months in the hospital. An attorney is consulted, and expert opinions are sought regarding a lawsuit against the first ED physician.

Plaintiff: I had classic symptoms of an acutely perforated ulcer. Alcohol and ibuprofen are both risk factors for ulcers. You didn’t ask about my alcohol intake until after I got worse. My WBC was elevated. You should have gotten a CT scan. I wouldn’t have had to spend 2 months in the hospital if you had done a better job.

Defense: Read my documentation. I considered that you might have an ulcer, along with a dozen or more other possibilities. Even though I didn’t specifically ask you about your alcohol intake, I ordered lab work for alcohol-related conditions like pancreatitis and liver disease. I ordered x-rays to look for free air from a perforation. There was none. Your WBC was not alarmingly high. I thought about doing a CT scan but decided you didn’t need one, and I documented why I made that decision. I may have missed your perforated ulcer, but my care was well within accepted standards. And besides, how do you know that you would not have experienced the same complications if you were diagnosed and had surgery the day before?

Result: After review by 2 EM plaintiff experts and a radiology expert, the case was found to be defensible and was dropped.


  • There is a legal difference between an error in judgment and substandard care.
  • It’s OK to be wrong if you think critically, form a reasonable differential diagnosis, evaluate that differential appropriately, and document your thought processes in the workup that you do or choose not to do.
  • Good discharge instructions, as were given in this case, are part of the standard of care.
  • Complications may result even when treatment is timely.

 Source: Reader submission

Reference: Peptic Ulcer Disease. Anand BS. Medscape eMedicine, Jan 29, 2017.


A thank you to all those who strive valiantly to do well:

“It is not the critic who counts; not the one who points out how the strong one stumbles, or where the doer of deeds could have done them better. The credit belongs to the one who is actually in the arena, whose face is marred by dust and sweat and blood; who strives valiantly; who errs, who comes short again and again, because there is no effort without error and shortcoming; but who does actually strive to do the deeds; who knows great enthusiasms, the great devotions; who spends oneself in a worthy cause; who at the best knows in the end the triumph of high achievement, and who at the worst, if he fails, at least fails while daring greatly, so that one’s place shall never be with those cold and timid souls who neither know victory nor defeat.”

Theodore Roosevelt – From “Citizenship In A Republic,” a speech delivered at the Sorbonne in Paris, April 23, 1910.


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