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Legal Special Defenses: An ED Physician's Friend, and Sometimes Savior
By Gregory P. Moore, MD, JD, Attending Physician, Emergency Medicine Residency, Madigan Army Medical Center, Tacoma, WA.
We should all be aware of the four components of malpractice the physician had a duty, breached the duty, there was harm to the patient, and the harm was caused by the breach of duty. Typically, if a lawyer proves all four elements are present, then the physician is liable for damages. Sometimes, though, "special defenses"' may be raised to absolve the physician even though it appears all the elements for malpractice are present. An example would be if a physician stopped by the roadway to help an injured victim. Even if malpractice occurred, the physician would likely not be held liable by using the special defense of Good Samaritan. Let's look at other defenses that can be utilized in court.
The following is a true scenario. An obstetrician is brought before a QA committee after being reported by a nurse. During difficult deliveries, the physician was observed pulling on the infant's hair to facilitate traction. The committee felt the physician: Had a duty; breached the duty (no OB doctor had done this painful maneuver or heard of it being done); and caused harm with the painful technique. The physician stated she had used this technique successfully many times, but the committee felt this was clear malpractice. Is there a legal defense that can be used?
Clinical Innovation Defense
A radiologist needed to get a contrast study in a child but was unable to get IV access. So he injected contrast into the child's calf and completed the study. Later, the child developed shortening of the Achilles tendon. It required two surgeries and bracing to correct. A suit for malpractice was filed, claiming that the physician had "experimented" on the child. The radiologist claimed that articles had cautioned against injecting into the buttocks or thighs, and that he had used the technique successfully many times in the past. The court did not allow the claim of experimentation and stated, "The everyday practice of medicine involves constant judgmental decisions by physicians as they move from one patient to another..."1
Of course, in this day and age, relying on this defense regularly would likely expose the practitioner to great risk.
Respectable Minority Defense
A patient presented to a neurosurgeon and was diagnosed with cerebral vascular insufficiency and prescribed a female hormone, estrogen. The patient developed enlarged breasts and loss of libido and brought suit against the physician. The neurosurgeon was the only one of nine neurosurgeons in Nashville to prescribe estrogen for this condition, although other physicians on the West Coast did so. The court directed a verdict for the physician stating, "[W]here there are two or more schools of thought among competent members of the medical profession concerning proper medical treatment for a given ailment, each of which is supported by responsible medial authority, it is not malpractice to be among the minority."2
The respectable minority defense cannot be used if a physician is the only one to practice a certain way. A corollary to the respectable minority defense is the "honest error in judgment" defense. This states that, "A doctor is not negligent simply because his or her efforts prove unsuccessful. The fact a doctor may have chosen a method of treatment that later proves to be unsuccessful is not negligence if the treatment chosen was an accepted treatment on the basis of the information available to the doctor at the time a choice had to be made."3 This defense often applies to emergency medicine, which is constantly faced with choices of medical treatments, antibiotics, test-ordering, and disposition decisions that must be made immediately and allow for second-guessing at a later time.
An Rh-negative woman became sensitized when no Rhogam was given after a miscarriage. She brought suit as she would have great difficulty bearing a child in the future. During trial, evidence revealed that she knew she was Rh negative, and had received Rhogam in the past, but did not tell her physician. The court ruled that her "wanton negligence" (by not telling) was a cause of the bad outcome and she was not allowed to recover damages.4
The legal concept of contributory negligence was first introduced in 1809 in Butterfield v Forrester.5 A man who was riding his horse was knocked off it after hitting a pole. The pole had been placed across the road by the defendant. At trial it was proven that the pole could have been seen from 100 yards and that the man was riding his horse extremely fast. He would have had time to stop and avoid the pole if he wasn't riding so fast. The judge instructed the jury that if a person riding in a reasonable manner could have avoided the accident, then they should find for the defendant. A plaintiff should not be allowed to recover when they themselves are a cause of the injury. In the United States, the Restatement (Second) of Torts defines contributory negligence as "conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff's harm."6
One classic legal case directly relates to follow-up of studies. In Ray v Wagner, a woman had a pap smear done by her physician. The result was positive, but the physician was unable to contact her for five months, during which her cancer had greatly progressed. The patient had given false information and there was no phone at the address she listed and she did not live at the address where she had a phone. She brought suit against the physician but it was dismissed based on contributory negligence.7 Contributory negligence completely bars recovery, with few exceptions. The courts have found that it tends to be inherently unfair, with the reasoning that if all of us had to bear the consequences of lifestyle and choices, then very few would be allowed to recover any damages. Thus, the concept of contributory negligence has generally been replaced in most jurisdictions by the concept of comparative fault. Only five states recognize contributory negligence and bar the patient from recovery if they are at all at fault.
Contributory negligence bars any recovery by the plaintiff. Comparative fault, however, allows a plaintiff to recover some damages, but they are reduced by the amount of fault that the plaintiff bears. The vast majority of states have adopted this concept into law.
For example, a patient sues a physician for malpractice. At trial, it is determined that the patient was 60% at fault. The jury awards $100,000. Pure comparative fault will reduce the award by 60%, as that was the amount that the patient was at fault, and only give the $40,000 (40%) that was determined to be directly the fault of the physician's malpractice. A real example of this concept is found in Cox v Lesko.8 In this case, a physician performed shoulder surgery for subluxation. The patient then missed months of physical therapy that was ordered to strengthen muscles and improve range of motion. She then brought suit against the physician because her condition didn't improve. The judge instructed the jury to consider the patient's non-compliance to be considered under the concept of comparative negligence. Pure comparative fault is acknowledged in 13 states.
It can be seen how this defense applies to many ED situations. Often, patients don't provide critical information, take their medicine as prescribed, or comply with treatment recommendations or follow-up directions. If there is a bad outcome, contributory negligence or comparative fault can be used in defense.
The next case has a sound legal basis, and was very imaginative. Kimberly Ross went to the ED with a lacerated finger. It was determined that sutures would be needed, and lidocaine was injected into the wound by the physician, who was in training. Immediately after the injection, Ross said she didn't feel well. Her arm jerked and her eyes rolled back. The physician walked a few feet from the bedside to summon help. Ross continued jerking and fell to the floor, hitting her head. After her fall, Ross suffered from problems with memory and dexterity and had personality changes. She was diagnosed with a vasovagal reaction and traumatic brain injury. She brought suit for malpractice. Ross claimed that the physician should not have left her side, allowing her to fall.
On initial impression, this case seems to fit the criteria for malpractice. The physician used the "sudden emergency" (in the emergency room) defense and was exonerated. This is a true defensive doctrine that is accepted in law.
The sudden emergency doctrine was derived by the courts to acknowledge that a person confronted with sudden or unexpected situation that demands immediate action may not use the same degree of judgment as they would use in normal circumstances. An example would be in a car accident, where someone is suddenly struck. They may then attempt to hit the brake pedal but hit the gas pedal instead, and thus accelerate, striking another car. That driver could claim that the sudden emergency caused him to do something he would not normally do, and the driver would likely be absolved.10
An ED physician, when charged with malpractice, may appear to have committed the four elements that would allow for losing the suit. There are a variety of special defenses that courts have acknowledged to trump a basic malpractice action. It is important to be aware of these defenses so they can be readily utilized if the situation arises.
1. Brook v St. John's Hickey Memorial Hospital, Supreme Court of Indiana, 1978. 269 Ind. 270, 380 N.E.2d 72
2. Chumbler v McClure, United States Court of Appeals, Sixth Circuit, 1974. 505 F.2d 489.
3. Ouellette v Subak, 391 N.W.2d 810 (Minn.1986).
4. In Graham v Keuchel, 847 P.2d 342 (Oklahoma 1993).
5. Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926 (K.B. 1809)
6. Restatement (Second) of Torts, Section 463-496
7. Ray v Wagner, 286 Minn. 354, 176 N. W.2d 101, 104 (1970)
8. Cox v Lesko, 263 Kan. 805, 953 P.2d 1033 (Kan.1998)
9. Ross v Vanderbilt University Medical Center, No.M1999-02644-COA-R3-CV,Feb. 18, 2000.
10. W.P. Keeton,D. Dobbs, R.Keeton and D. Owen, Prosser and Keeton on the Law of Torts Sec 33, at 196 (5th ed. 1984)