ED Patient May Share Blame for Bad Outcome, But Can You Prove It?

Document specifics about noncompliance

If an ED patient dies because she doesn't take antibiotics, as instructed by the emergency physician (EP), this doesn't mean that her family won't later sue for medical malpractice.

If a case such as this goes to trial, the EP's defense attorney can include a line in the jury charge stating that the plaintiff was "contributorily negligent," if you have shown evidence of this, says Linda M. Stimmel, JD, a partner at Wilson Elser Moskowitz Edelman & Dicker LLP in Dallas, TX.

"I've won several lawsuits because a jury understood that a patient was negligent," says Stimmel. One case involved a patient who died after not following instructions to return to the ED if he developed a fever, and the jury ruled in favor of the EP.

"You have to be careful about how you present the evidence, and it has to be done delicately," says Stimmel. "But you absolutely can use the patient's noncompliance as a defense in a medical malpractice lawsuit."

The patient's negligence may come out in depositions or expert reports during the development of the lawsuit, or it may become an issue at trial. Regardless, charting and documentation will become very important.

"Many times, I will talk to an ED nurse or physician who knew the patient would be non-compliant but they didn't chart it," Stimmel says.

If a patient's wife tells you, "My husband never takes his medications," or a patient leaves your ED saying, "I'm not sure I'm going to come back in for the blood test," this should be documented in quotes, advises Stimmel, instead of just charting the word "noncompliant," which won't mean much to you several years later.

"If you document these issues appropriately, then you automatically have evidence in the chart that the patient's actions, or inactions, may have contributed to the outcome," says Stimmel. "That will help you a lot."

If the patient's noncompliance comes up during the development of the lawsuit, says Stimmel, "it automatically weakens the case, and sometimes the case will go away. Ultimately, the jury's acceptance of the patient's negligence will very much depend on the facts of the case."

EP May Be Partially Liable

In some states, if the jury finds the patient is 70% responsible and the EP is 30% responsible, this means the EP is still liable for 30% of the verdict, says Arthur R. Derse, MD, JD, FACEP, professor of bioethics and emergency medicine at the Medical College of Wisconsin, whereas in other states, the EP is not held responsible at all if the patient is found to be 50% or more responsible.

Victoria L. Vance, JD, a health care attorney with Tucker, Ellis & West in Cleveland, OH, says that in some states, a patient's actions or inactions, which serve as a proximate cause of their own injury, may constitute a complete bar to recovery in a medical malpractice action.

In other states, says Vance, a jury will be asked to review and compare the misconduct of the patient against the allegedly negligent conduct of the defendant physician and assess their relative fault, thereby reducing the patient's recovery in proportion to their fault.

"For the defense to be viable, the defendant physician has the burden to prove that the patient's conduct fell below the standard to which he or she should conform for their own protection and safety," says Vance, and the patient's conduct must be a proximate cause of his or her own injuries. In addition, the patient's conduct must be contemporaneous with the physician's alleged malpractice, and not be a prior bad act, says Vance.

A related defense is available in some jurisdictions, adds Vance, involving the failure of the patient to mitigate his or her damages. This defense would involve a scenario in which a patient's failure to return to the hospital or doctor, as instructed, does not cause the injury but only makes it worse.

Procedurally, says Vance, the defense of "contributory negligence" is raised in the initial pleadings filed by the physician's counsel in answer to the complaint. As the case is investigated and prepared for trial, the issue of the patient's conduct will be explored during depositions, through the medical record review, and by asking the experts to render an opinion on the reasonableness of the patient's conduct, she says.

"Rarely will a judge dismiss a case solely on a contributory negligence defense," says Vance. "But if the facts supporting the defense are compelling, a fair-minded and practical plaintiffs' attorney may decline to take the case, or may voluntarily dismiss the case."

Alternatively, says Vance, some plaintiffs' lawyers will be forced to reevaluate their case and may look to settle it for a fraction of the value the plaintiff originally had in mind for the case.

Is Patient Sympathetic?

A patient's ED visit may have resulted from high-risk behavior, but that doesn't mean that he or she is legally negligent for a bad outcome resulting from poor ED care, says Derse.

"If someone is seriously injured while roller skating on a freeway, and something the EP does falls below the standard of care and a bad outcome results, it may seem that the person contributed to their own injury because of their prior actions," says Derse. However, EPs "take our patients as they come," says Derse. "Their prior actions don't mean they have assumed any risk of being treated in some way poorly by us."

The fact that the patient was injured as a result of substance abuse, for instance, doesn't relieve the EP of the duty to adhere to the standard of care, he explains. "Interestingly, the fact that a plaintiff engages in unhealthy or risky behavior, even if he or she smokes, drinks, or uses drugs, does not seem to be as important a factor as whether he or she is a sympathetic person," says Derse.

The fact that a patient is morbidly obese with multiple medical problems won't necessarily make a jury less sympathetic to him or her, says Derse, but the same might not be true if a patient is abusive, obstinate, and disrespectful while in the ED.

"If a patient is combative, it's possible that injuries that the patient suffered might not be identified by the EP, and there may be some omission made," says Derse. The EP's defense could be that the patient's combativeness contributed to a resulting bad outcome, says Derse, but "the reality is that we have to deal with difficult patients all the time."

If the patient countered by stating that his behavior was due to a head injury and the jury believed this to be true, then the EP's defense of contributory negligence would be difficult to maintain, says Derse. "However, if a patient won't allow the EP to examine him, it may be used as evidence that the patient contributed to the inability to make a diagnosis," he adds.

Untruthful History

Patients can also be contributorily negligent if they're not honest in providing their history to the EP, but this may come down to a credibility contest.

"If you have a detailed, accurate history of what the patient told you, the jury is going to believe that you wouldn't have missed something," says Stimmel. "But if you have a thin, vague history without many details, the jury will not believe that you asked the right questions."

A patient may lie to the EP for the purpose of obtaining narcotics, for instance, "but it turns out that they have something else going on that you missed entirely," says Derse. If a young cocaine user tells an EP that his chest pain is from heavy lifting and vehemently denies any substance abuse, for instance, then dies of a myocardial infarction, this could be used to make a claim that the patient was contributorily negligent because he withheld information.

"That evidence could be used by the defense to say that the EP could not make an accurate evaluation because of the intentional misrepresentation on the part of the patient," says Derse. The defense would argue that had the EP known about the cocaine use, a different work-up and course of treatment would have been pursued.

It then becomes a question of whether the jury believes that patient really did report the cocaine use to the EP, and the EP failed to document it, or if the EP is telling the truth. "It now becomes simply a matter of credibility," says Derse. To reduce risks, he says to "chart the important negatives. Document 'this didn't happen,' or 'the patient didn't have this.'"

After Discharge

A case can be made for contributory negligence if an ED patient is noncompliant with discharge instructions, says Derse, such as a patient with an ankle injury who plays in a touch football game and ends up with a fracture.

"If the patient said, 'I wouldn't have had this fracture if the EP hadn't missed the extent of this particular injury,' says Derse, the EP could counter that the patient specifically went against his recommendations to elevate his ankle, apply ice, and rest.

"The problem with that is that it generally has to be a recommendation that a reasonable person would understand that they should not do it," says Derse. For instance, a contributory negligence defense is more likely to be accepted by a jury if the patient with an ankle fracture plays touch football right after leaving the ED, than if the patient simply went to work the following day instead of adhering to strict bed rest.

However, Derse says that juries will generally give the benefit of the doubt to the plaintiff because the EP has superior medical knowledge, and will also be sympathetic that patients have to get on with their lives and do things.

"Unless the patient was clearly told something in very specific terms, the jury will feel that patients don't have the medical knowledge to figure out all of the nuances," says Derse. Many jurors are not completely compliant patients themselves, notes Derse, and, therefore, won't expect the plaintiff to have followed every single instruction to the letter.

Juries also know that doctors don't always communicate well, he adds, so if the patient states, "The doctor may have told me that, but I didn't understand it and didn't ask about it," juries may sympathize with this.

"The fact that you have a checklist of 50 things doesn't mean a reasonable juror will agree that it is something the patient should have known," Derse says.


For more information, contact:

• Arthur R. Derse, MD, JD, FACEP, Professor, Bioethics and Emergency Medicine, Center for Bioethics and Medical Humanities, Institute for Health and Society, Medical College of Wisconsin, Milwaukee, WI. Phone: (414) 955-8498. E-mail: aderse@mcw.edu.

• Linda M. Stimmel, JD, Partner, Wilson Elser Moskowitz Edelman & Dicker LLP, Dallas, TX. Phone: (214) 698-8014. Fax: (214) 698-1101. E-mail: linda.stimmel@wilsonelser.com.

• Victoria L. Vance, Tucker Ellis & West LLP, Cleveland, OH. Phone: (216) 696-3360. Fax: (216) 592-5009. E-mail: victoria.vance@tuckerellis.com.