Hospital and EP Named Jointly? Interests Not Always Aligned
If an emergency physician (EP) and the hospital are both named in a malpractice suit, this can potentially complicate the EP’s defense. "The hospital, especially a large hospital that’s self-insured, is going to have deep pockets," explains Thomas R. McLean, MD, JD, CEO of American Medical Litigation Support Services in Shawnee, KS.
Since the standard malpractice coverage has a $1 million limit, that’s the most the plaintiff can obtain from the EP defendant. "But if the plaintiff attorney can show that the EP wasn’t properly supervised and the hospital is therefore liable, the sky becomes the limit in terms of what the settlement or jury award could be," says McLean.
The hospital could argue that the EP was the sole causative factor resulting in the patient’s bad outcome in order to avoid exposure to much higher policy limits. "If I am the hospital attorney, one of my strategies would be to blame the EP for everything — and that’s a million dollars maximum," McLean says. "That’s a potentially difficult situation for the EP."
EP May Need Separate Counsel
If the EP is insured under a policy issued to a hospital, or through a hospital’s self-insurance plan, "you have to at least wonder whether the insurer is going to give the physician’s interests equal consideration to the hospital’s interests," says Robert J. Milligan, JD, an attorney at Milligan Lawless in Phoenix, AZ.
If settlement on behalf of both the EP and the hospital is a possibility, says Milligan, the EP may need separate counsel to advocate for him or her about whether to settle, and if the claim is going to be settled, what portion of the settlement amount should be allocated to the EP.
"But the issue is not as bad as it may seem," says Milligan. The EP is going to be defended by an attorney with an ethical obligation to look after the EP’s interests, regardless of who pays the premium.
If the hospital wants one attorney to defend both the EP and the hospital, the EP might believe his or her interests are in conflict with, or not completely aligned with, the hospital’s. At that point, the EP would want to have a discussion with the defense attorney and express concerns about that conflict, advises Milligan.
"Most lawyers don’t want to get a bar complaint," he says. If one of two joint clients is concerned about a conflict, attorneys will likely say they are not confident that they can effectively represent both parties. "At that point, the hospital — or its insurer — doesn’t have much choice. They have to bring in a separate attorney," says Milligan.
Blaming Hospital is Problematic
If the EP is a hospital employee, Milligan says, "the hospital doesn’t benefit from dumping liability on the physician because it bounces right back to the hospital." This isn’t the case if the EP is employed by a private group that covers the hospital’s emergency department.
"In theory, the hospital may benefit from blaming the physician. And in practice, that may happen sometimes," says Milligan. "But in my experience, when defendants blame each other, the plaintiffs win and the defendants lose."
Milligan has never seen a situation in which an EP successfully defended him- or herself in a malpractice suit by blaming other defendants. "The plaintiff basically gets up and argues, The defendants agree on one thing — one or more of them is at fault. So just decide which of them, and give me a verdict," he says.
Milligan recommends that EPs defend their own care without commenting on the care provided by others.
If a patient’s bad outcome was linked to a delay in getting test results back, for example, the EP can say, "I ordered the test and I interpreted it when I got it back. It took longer than I would have liked, but that’s all I could do." On the other hand, the EP could say, "The hospital’s turnaround time on studies is unreasonable, and that’s why this happened."
If the EP takes the latter approach, says Milligan, the plaintiff attorney will ask, "How long have you been working at the hospital? If it’s such a terrible system, why have you been working there for years?"
If the EP blames the hospital, therefore, the plaintiff attorney can suggest that the EP is partially responsible for the situation. "The EP can aggressively go after the hospital’s conduct, which benefits the plaintiff," says Milligan. "Or the EP can defend his or her own conduct, which benefits the EP."
For more information, contact:
- Thomas R. McLean, MD, JD, American Medical Litigation Support Services, Shawnee, KS. Phone: (913) 526-5526. E-mail: email@example.com.
- Robert J. Milligan, JD, Milligan Lawless, Phoenix, AZ. Phone: (602) 792-3501. Fax: (602) 792-3525. E-mail: Bob@milliganlawless.com.