Is a Joint Defense Approach in Best Interest of a Sued EP?

Defendable case may be settled

When a medical malpractice lawsuit is filed, the emergency physician (EP) and the hospital are often represented by the same defense counsel, but there are times when this is not in the EP's best interest, according to Robert B. Takla, MD, MBA, FACEP, chief of the Emergency Center at St. John Hospital and Medical Center in Detroit, MI.

"A lot of it depends on how much autonomy is given to the EP, whether they have the right to say, 'I don't want to settle,'" says Takla. If the same insurance company happens to cover both the hospital and the EP, one defense attorney typically represents both parties, he notes.

"But some EPs are a little bit wary of having a joint defense," he says. "They want to have the ability to say, 'No, I don't want to settle this case. I want it to go to court.'"

That decision isn't always up to the EP, adds Takla, as the hospital risk manager might decide to settle a defendable case for $25,000 rather than spend $30,000 in legal fees and risk a bad judgment.

The insurance company would rather pay one attorney to represent both the EP and the hospital, says Takla, but, at times, it's in the individual EP's best interest to be represented by separate counsel. "Sometimes, if the EP doesn't like the direction that the hospital attorney has in mind, he or she will get their own counsel," he says.

An EP may be against settling a case because there was no deviation of the standard of care, for instance. In one case reviewed by Takla, an EP discharged a patient after a Doppler ultrasound looking for testicular ischemia showed good blood flow, but the patient sued the EP after returning days later with a necrotic testicle. "The EP didn't do anything wrong whatsoever, and chose not to settle, but the jury ended up giving a verdict against him," says Takla.

It would have probably cost less money to settle the case, Takla acknowledges, but in this type of scenario, the EP may not want to admit to wrongdoing. "The business decision may be to settle the case, but the EP will say, 'Why should my premiums have to go up? Why should I have a scar on my record?'" he says. "The EP may rather defend it and, ultimately, be proven not guilty."

Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods and a former practicing emergency physician, says that the ability of physicians to control whether a case is settled "is less than it was a generation ago."

Years ago, he says, many insurance policies included a Consent to Settle clause stating that they would settle a case only if the insured physician consented to doing so and, otherwise, the case would be defended.

"As the malpractice problem got worse, fewer insurers are willing to provide those clauses today," says McMenamin. Those that do provide a "hammer" clause, which is a provision that states if the case could have been settled for a certain amount, but it goes to trial because the physician exercises his or her rights under the Consent to Settle clause, and it ends up costing more as a result, the physician is responsible for the difference. "How many physicians can afford to take that kind of a risk?" asks McMenamin.

McMenamin says a joint defense is desirable in most cases — not just because this approach can save money, but also because defendants are less likely to criticize one another. "The best thing that can happen for a plaintiff in most malpractice cases is for defendant A to criticize defendant B, for a number of reasons," he says.

First, medical professionals are more sophisticated and knowledgeable about the facts of what occurred. "They are going to be able to mount more pointed, accurate criticisms than laypeople, including very intelligent lawyers," McMenamin says. "The attack that you get from your co-defendant may be more telling and more damaging than the one from the plaintiff."

Also, says McMenamin, human nature being what it is, once defendant A attacks defendant B, defendant B is going to be inclined to counterattack. "The plaintiff gets to sit back and be a bit of a spectator, watching the gladiators go at it," he says. "The jury is listening to doctor A say that doctor B goofed. They're going to bet that somewhere along the line, somebody goofed. That conclusion has to benefit the plaintiff."

For this reason, defendants generally avoid criticizing each other, says McMenamin, adding that there are circumstances where it's virtually impossible to do so. Years ago, McMenamin defended an ear, nose, and throat (ENT) physician who did a radical neck section based on the pathologist's interpretation of a frozen section, incorrectly reporting a malignancy. Days later, the permanent report showed the disease was benign, and the patient sued.

The pathologist and the ENT physician were represented by separate defense counsel. "We both knew there was great risk in attacking each other in court but, to my great dismay, the pathologist hired an ENT to opine on the quality of care that my guy offered," says McMenamin. "I was forced — and this is the only time in my career that I've done this, to hire a pathologist to criticize what my codefendant had done."

During recess, the judge asked counsel to come into chambers, and convinced both sides to settle the case. "This gives a sense of how things can go rapidly downhill if you get into the business of pointing figures at your codefendant," says McMenamin.

Criticism Not Necessary

Under certain circumstances, says McMenamin, the hospital and EP have interests that are not just separate, but different, and separate counsel is appropriate. "The fact that you have separate counsel, however, doesn't have to mean that you are criticizing each other," he says.

The deterioration of an unstable patient in a busy ED may go unnoticed by ED nurses who are caring for other patients, so the EP isn't notified in a timely manner. In this case, says McMenamin, the EP might argue that there are five nurses and only one physician, and that she depends on the nurses to be her eyes and ears. The nurses would then counter that they have an ED full of patients and a waiting room filled with still more, and that the EP should have paid more attention to the patient's condition.

Instead, the EP could simply say that he or she complied with the standard of care and acted on the information available to him or her, and take no position on the behavior of the nurses since he or she is not an expert on nursing care. Likewise, the ED nurses could say that they complied with the standard of care and take no position on how well the doctor performed.

"That way, the plaintiff has to do battle with the nurses on the one hand and the doctor on the other. Defendants can avoid knocking heads with each other in court," says McMenamin.

Typically, even where there exists some potential for adversity among defendants, defense counsel will look for ways to avoid engaging in that type of fight, says McMenamin.

"If there just simply is no way around it, you may have to go after the other guy, and it's every man for himself," he says. "But that's really an unhappy choice to have to make. Fortunately, most of the time, it is not necessary to do that — and most of the time, you are better off if you don't."

EP May Want to Try Case

In some cases, the hospital may choose to settle the case and leave the EP to defend the case on his own. "That may not necessarily be a bad thing for the doctor," says McMenamin. "Now that the interests of other hospital personnel are not at risk, whoever the other folks in the case may be, the reluctance to go criticizing your former codefendant disappears." It then becomes a perfectly viable option, says McMenamin, to say "It's the empty chair that's responsible, not I."

In addition, depending on state law, it's possible that the EP could get credit for the money paid by the hospital in the event the case is lost. "If the case is worth $500,000, and the hospital, to buy peace and not take the risk of a runaway verdict, pays $250,000, and the jury finds for the plaintiff $500,000, the court may say, 'I'm going to hit the doctor for the other $250,000, but not for the full $500,000,'" says McMenamin.

If the EP settles the case, his or her name is reported to the National Practitioner Data Bank, notes McMenamin, just as it would be if a case was lost at trial. "So that is another incentive for the EP to try the case," he says. "Unfortunately, your reputation may be blemished, even if you win, depending on how much attention people pay to the whole situation."

Sources

For more information, contact:

• Joseph P. McMenamin, MD, JD, FCLM, Partner, McGuireWoods, Richmond, VA. Phone: (804) 775-1015. E-mail: imcmenamin@mcquirewoods.com.

• Robert B. Takla, MD, MDA, FACEP, Chief, Emergency Center, St. John Hospital and Medical Center, Detroit, MI. Phone: (313) 343-7071. E-mail: rtakla@comcast.net.