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Hidden in plain sight: Why diagnostic errors cause catastrophic E.D. losses

8/13/26

By: Carly Dick and Ted Gale

In emergency medicine, the most severe malpractice claims rarely begin with a dramatic presentation. More often, they start with a patient who appears stable, comfortable, and appropriate for discharge, until a time-sensitive condition reveals itself too late. Diagnostic error remains one of the leading drivers of high-severity professional liability claims, particularly in emergency departments and freestanding emergency departments (FEDs) (a/k/a Hospital Based Off-Campus Emergency Departments (HBOCEDs)).

What is the free-standing emergency department?

In Florida, a freestanding emergency department is a hospital-based emergency facility that is physically separate from the main hospital campus but operates under the hospital’s license and provides emergency medical care, including emergency room services and facility fees.

A freestanding emergency department provides a higher level of care than an urgent care center, although the two are often confused.  Unlike an urgent care center, an FED can treat potentially life-threatening conditions, distribute medications, and provide on-site laboratory and imaging services.  FEDs are integrated with the hospital’s services, so patients can be transported for direct admission to the main hospital.  And, like the hospital under which it operates, an FED is governed by the provisions of the Emergency Medical Treatment and Labor Act (EMTALA).

As of July 1, 2026, there were 174 FEDs in the State of Florida alone. Nearly every major health system in Florida has developed FEDs and more are expected to open.

Freestanding emergency departments, like their more traditional counterparts, are subject to catastrophic claims arising from the loss of an opportunity to diagnose and address a patient’s condition. Liability does not arise simply because a diagnosis was missed; it often turns on whether there was a point when meaningful intervention was still possible, but warning signs were overlooked, discounted, or not acted upon. Claims against providers and hospitals frequently involve some combination of the same core facts: an adverse outcome, a diagnostic failure, and a time-sensitive condition. In the FED setting, where the facility is physically separate from the main hospital and may depend on transfer, transportation, or remote consultation for definitive care, these risks can be magnified. As a result, FEDs require risk-management strategies tailored to their unique operational realities.

The path to a catastrophic claim

Many diagnostic error cases follow a familiar pattern:

• The patient arrives appearing stable.
• A red flag is overlooked or underappreciated.
• The condition progresses.
• Recognition, escalation, and/or transfer is delayed.
• A catastrophic outcome occurs.

These cases often involve conditions that are both time-sensitive and initially difficult to identify. Clinicians may reasonably rule out common diagnoses while failing to adequately consider less common but more dangerous alternatives.

Common causes of diagnostic error

Several recurring themes appear in emergency medicine claims.

• Failure to consider the diagnosis
  • In some cases, pulmonary embolism, stroke, aortic dissection, or testicular torsion never enters the differential diagnosis; conditions that requires transportation to the hospital. If a dangerous condition is never considered, it is unlikely to be diagnosed, and the delay in transportation compounds the problem.
• Failure to recognize red flags
  • Persistent tachycardia, syncope, neurologic complaints, anticoagulant use, and severe pain out of proportion to examination findings frequently appear in malpractice allegations. Often, the abnormal finding is documented but not incorporated into clinical decision-making. Our goal in risk management is this: Diagnostic certainty should increase with time in the ED.
• Failure to reassess
  • Patients may remain in the emergency department for hours while their condition evolves. Documentation that demonstrates meaningful reassessment can be critical when defending care.
• Handoff and transfer failures
  • Communication lapses during shift changes, consultations, or facility transfers can create liability even when the diagnosis itself is recognized.

High-Risk diagnoses

While thousands of conditions present to emergency departments, a relatively small group accounts for a disproportionate share of catastrophic outcomes.

Cardiovascular emergencies such as acute coronary syndrome, pulmonary embolism, and aortic dissection remain frequent sources of litigation. These cases often involve allegations that the warning signs were present but not appreciated.

Neurologic conditions present similar challenges. Posterior circulation stroke may resemble vertigo, dehydration, or a viral illness rather than a classic stroke presentation. Intracranial hemorrhage can initially appear to be a routine headache complaint.

Surgical emergencies also create significant exposure. Testicular torsion remains a classic example because of its narrow treatment window and easily understandable mechanism of injury.

Complications related to bariatric surgery are another growing risk area, particularly when community emergency departments are asked to evaluate patients with altered anatomy and complex surgical histories.

Why freestanding emergency departments face unique challenges

Freestanding emergency departments have expanded rapidly and now represent an important component of emergency care delivery. Yet they face a unique risk profile.

The challenge is what might be called the “FSED paradox.” Patients expect hospital-level emergency care, but the facility may not have immediate access to all hospital-level resources. The optics of these cases makes them uniquely difficult to defend, even if the medicine is on the provider’s side. Definitive treatment often depends on consultation, transportation to the parent hospital, or transfer to another facility.

Several factors contribute to this risk:

• Resource separation from the main hospital
  • Most FEDs will have on site labs, for instance, but some FEDs are pulling away from providing lab services. Additionally, cardiac catheterization laboratories are not available in the FED.
• Limited immediate specialist availability
  • Specialists are not simply on another floor of the building.  Consults necessarily take place over the phone, and the consulting physician may be unaware that the patient is not physically at the hospital’s main campus.
• Dependence on transfer and transportation system
  • The perception that there was an unreasonable delay in transportation to the main hospital or transfer to a higher level of care has the potential to inflame a jury.
• Imaging limitations in certain clinical situations
  • Any given FED probably will not have the ability to perform studies such as an MRI or echocardiography, which can lead to the perception unreasonable delay.
• Less frequent exposure to rare but catastrophic conditions
  • Catastrophic diagnoses may be encountered less frequently but remain equally time-sensitive when they do occur a result, liability may arise not only from a failure to diagnose but also from a failure to escalate care appropriately once a serious condition is identified.

Strategies for risk reduction

Healthcare organizations can reduce diagnostic-error exposure through deliberate systems-based approaches. Key initiatives include:

• Diagnostic safety programs focused on high-risk conditions.
• Structured review of diagnostic near misses.
• Escalation pathways for neurologic complaints, persistent tachycardia, and high-risk chest pain.
• Transportation governance programs that monitor delays and communication failures. Practical considerations should include: How quickly are transfers initiated? Where do delays occur? Are communications documented? Is acceptance clearly established? Is transport availability tracked?
• Documentation practices that explain not only what was diagnosed, but what dangerous conditions were considered and why they were excluded.

Risk managers should also consider tracking trigger events such as return visits within 72 hours, unexpected ICU admissions, strokes after discharge, myocardial infarctions after discharge, and deaths occurring shortly after an emergency department visit.

Key Takeaways and final thoughts

FEDs occupy a unique position within the healthcare system. Patients often expect the same immediate access to specialists, advanced imaging, intensive care services, and definitive treatment that they would receive at a traditional hospital emergency department.

In reality, however, freestanding facilities frequently operate with fewer on-site resources and a greater reliance on consultation, transportation, and transfer systems. As a result, diagnostic risk extends beyond merely identifying the correct condition. Liability often arises from delays in reassessment, escalation of care, communication, transfer acceptance, or transportation to a higher level of care at the hospital.

For risk managers, the most significant threats are not always obvious diagnostic failures, but rather the small breakdowns that occur after a serious condition is suspected. The most effective organizations recognize that catastrophic outcomes are often preceded by identifiable warning signs and design systems that support timely diagnosis, reassessment, communication, documentation, and transfer or transportation decision-making before a manageable clinical problem becomes a catastrophic loss.

The most devastating malpractice claims rarely begin as obvious catastrophes. They often start as routine encounters with subtle warning signs hidden in plain sight. For risk managers, clinicians, and healthcare organizations alike, the most important question may be the simplest:

If this patient dies tomorrow, what warning sign would we wish we had recognized today?

For more information please contact Carly Dick at carly.dick@fmglaw.com, Ted Gale at ted.gale@fmglaw.com or your local FMG Law attorney.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.