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Does your ED patient have a case against you?
Weak cases will get "weeded out"
Being served with papers indicating a patient has sued you is a shocking and upsetting moment. However, this doesn't necessarily mean the case is valid—or even that it will go forward at all.
For a patient to prevail in a medical malpractice case against an ED physician, he or she must prove three things: The appropriate standard of care, the doctor's deviation from the standard of care, and a proximate causal connection between the doctor's act or omission causing the breach and the injury sustained by the patient.
"The patient must prove each of these elements by a preponderance of the evidence, which means that the existence of each must be more probable than not," says Joseph J. Feltes, a partner with Canton, OH-based Buckingham, Doolittle & Burroughs. "This is a lesser standard than in criminal cases, which require proof beyond a reasonable doubt."
Standard of care may not be what you think
"Sometimes people misunderstand how the standard of care is defined in a specialty like emergency medicine," says Steven Davidson, a partner with Omaha, NE-based Baird Holm. "The standard of care is set by the specialty itself, rather than something higher than that."
This means that an ED physician is obligated to respond like other ED physicians would respond, not as a specialist with the highest possible level of knowledge about a condition would respond.
Often, plaintiffs attempt to hold physicians to an unobtainable standard of care. "An ED physician is not required to be a miracle worker. Certain patients are beyond what medical science can do for them," says Feltes.
He notes that a Louisiana court recently exonerated an ED physician from malpractice for doing "an excellent job in a horrendous situation" when a patient presented with profuse bleeding.1
The standard of care for an ED physician, says Barbara Pilo, a counsel attorney in the litigation section of the Dallas office of Fulbright & Jaworski LLP, should take into account the many variables which may be involved in emergency care. These may include the presentation of an acute condition, the need for prompt action, the lack of a pre-existing physician relationship, and the unavailability of a comprehensive medical history.
"An emergency department physician should not be judged according to the standards of another medical specialty field," says Pilo. "The standard of care relevant to a physician, or other health care provider in the emergency department, will be the conduct of a reasonably prudent physician, nurse, or technician, in an emergency room context."
In some cases, the ED physician's conduct may fall below the standard of care, but in fact, is unrelated to the outcome that the patient is claiming damages for. "That is always something that defense counsel will look at, especially in cases where there was a clear breach of the standard of care," says Davidson.
For example, the patient's bad outcome may have happened regardless of what the physician did, or could have been the result of something a different provider did.
"There are countless ways in which other events may have intervened to cause a result that breaks the chain of causation with the act that the ED physician is getting sued for," says Davidson.
Damage must be connected to breach
It's not enough for the plaintiff to show that the standard of care was breached-he or she must have suffered damage as a result of that breach. "It is easy to hypothesize how substandard care might be shown to exist in the absence of any injury," says Pilo.
For example, an ED patient may be able to prove that a miscommunication between ED staff caused an excessive delay for treatment. "As a legal matter, such a complaint will be destined to fail if the plaintiff did not suffer harm," says Pilo.
Unless the patient can prove that an injury was caused by the delay in treatment, as opposed to the condition which brought the individual to the ED in the first place, "proof of an essential component of a malpractice case will be lacking," says Pilo.
In situations where a patient has less than a 50% chance of survival when presenting to the ED, most states have created a cause of action for "loss of chance," wherein the patient must prove that the physician's negligence increased the risk of harm to the patient.
"This operates as an exception to proof of proximate causation," says Feltes. "Under these circumstances, damages can be awarded based on the percentage of chance the patient lost."
For example, an Ohio court recently found that a plaintiff could recover under "loss of chance" principles. "In that case, the plaintiff's expert testified that the patient had a 10% to 40% chance of survival if operated on between the time of arrival and the time she was pronounced dead," says Feltes. "The failure to properly triage the patient caused him to lose this 30% chance of recovery."2
Judgments that the ED physician makes between multiple alternatives, both of which are acceptable alternatives, typically are generally are not enough to generate liability.
"Sometimes you will see a physician get sued for choosing to handle a patient in a particular way, when really what is happening is they are exercising professional judgment," says Davidson. "Doctors can choose between two acceptable courses of care. A bad outcome for that choice is not something you can fairly be sued for."
When evaluating the proof of what constitutes compliance with the standard of care, it must be noted that there may not be a single valid response in a given medical emergency, says Pilo.
In other words, simply contending that another physician may have acted differently under the circumstances, or preferred another mode of treatment, isn't enough to establish a departure from the standard of care.
"The standard of care may consist of a range of acceptable medical conduct," Pilo says. "Second guessing a close judgment call generally doesn't make for a successful medical malpractice case, particularly if a defendant can make a convincing showing that an acceptable mode of treatment was followed."
Even if the patient can demonstrate an injury attributable to emergency care, without proof of a departure from the applicable standard of care, a case of medical negligence against an ED physician will be insufficient. "Even in the presence of injury which may be the consequence of treatment in the emergency department, an unsuccessful outcome does not necessarily imply substandard care," Pilo says.
According to Pilo, "Despite the existence of an unfavorable result for the patient, if proof can be shown that the applicable standard of emergency care received compliance under the circumstances, a defendant in a medical malpractice case should prevail."
Checks and balances come into play
Poor outcomes, standing alone, are not enough to create a claim. "These happen every day in the ED, typically notwithstanding a physician's best efforts," says Davidson. "Anybody who can find a lawyer to take their case can sue, but the claim won't be successful just by virtue of a poor outcome."
This is because the patient needs to prove that the standard of care was breached, which typically requires the testimony of an expert. "You need another doctor to say, 'I'm familiar with ER care and know what physicians are supposed to do, and I have reviewed this file and this physician failed to meet that standard in these particular ways,'" says Davidson. "That is a lot different thing to prove than 'I went to the ED and had a complication,' or 'I wasn't treated timely and had a bad outcome.'"
Judges are, in fact, required by law to make sure in their own mind that the evidence is sufficient to support a verdict. "And if it's clearly not, there are procedures we can use to ask the judge to reverse the verdict for insufficient proof of the elements of the claim," says Davidson. "In cases where there isn't more than a bad outcome, usually the judge will dismiss those before they go to trial."
Sometimes, for example, cases get dismissed early in the process when the plaintiff fails to identify an expert witness who can support their claim.
"There are lawyers who will take weak cases and will find experts to say things for them. And those cases can be dangerous, obviously," says Davidson. "But usually the flaws in those tend to come to the surface by the time you work your way through your case."
The problem is that it takes a while for this to occur, which means the ED physician has to spend time and money until the case is in front of a judge and can be dismissed.
"I suppose that's the dark side of the jury system," says Davidson. "But more times than not, judges usually see through that. They will weed out claims that really shouldn't have been filed or should not go to a jury."
If a case is weak, this is usually revealed before you are sitting in the courtroom with a judge and jury. "There are several points in the course of a lawsuit where the system builds in checks and balances on the claim," says Davidson. "The plaintiff will have to produce evidence and establish the validity of the claim."
For this reason, a big part of the defense lawyer's job, says Davidson, is "if the case is one that you can get rid of at an early stage, we work hard to get that done. You see a fair number of cases where you go through those initial stages, then the plaintiff's lawyer realizes, 'I'm not going to be able to prove this' and walks away. That's not infrequent."
Proper documentation—of medications administered, tests ordered, and patient monitoring—is oftentimes "the key to avoiding otherwise baseless malpractice claims," says Feltes.
Communication between ED physicians and nurses, as well as between residents and attending physicians, also becomes an important issue. "If an action is taken and not charted, plaintiff attorneys will often argue that it did not happen," says Feltes. "This places the credibility of the physicians and nurses at issue."
If the standard of care was legally met, but the jury is presented with testimony that indicates otherwise, this is a troubling situation. "If you find yourself justifying your conduct through fine distinctions, and you've got a sympathetic plaintiff with a serious problem, those cases can get difficult," says Davidson. "That's when I start talking to the client and insurance company about whether and how to settle, so they can avoid a huge adverse outcome."
In these cases, the jury's perception of the ED physician who is being sued becomes very important. For the most part, Davidson says that juries start with the presumption that doctors know what they are doing and their judgment can be trusted. However, if the doctor comes off as arrogant when testifying about his or her actions, this can quickly change the jury's good opinion about the physician.
For this reason, being able to explain to laypeople the decisions you made and the care you gave becomes critical. "If you combine a physician who is a poor communicator who doesn't bond with the jury very well, with a set of facts that is arguable about the judgment that is being made—those are the cases that scare me," says Davidson.
1. Willis v. Smith (La.App. 2 Cir. 1/14/09), 2009 WL 81146.
2. Natoli v. Massillon Community Hospital (Ohio App. 12/1/08), 2008 WL 5077636.
• Steven D. Davidson, Partner, Baird Holm, Omaha, NE. Phone: (402) 636.8227. E-mail: email@example.com.
• Joseph J. Feltes, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5225. E-mail: JFeltes@BDBLAW.com.
• Barbara Pilo, Counsel, Fulbright & Jaworski LLP, Dallas, TX. Phone: (214) 855-8044. E-mail: firstname.lastname@example.org.