A recent malpractice case involved a patient who was discharged from an emergency department (ED) with a diagnosis of benign positional vertigo. “She was having a stroke, and was returned to the hospital a few hours later with an occluded basilar artery,” says Gary Mims, JD, a partner at Sickels, Frei and Mims in Fairfax, VA. 

The emergency physician (EP) did not document her differential, but in her deposition testified that she considered a variety of diagnoses. She added that she specifically considered basilar artery occlusion.

“While it was our contention that she should have considered stroke — and after a negative CT, specifically an ischemic stroke — it was unlikely that anyone would be so specific as to have considered where the occlusion was, and then not rule it out and discharge the patient,” says Mims.

It was clear to Mims that the EP learned the specific stroke the patient had after the lawsuit was filed, then tried to explain away that she had considered it. “A better response, in my opinion, would have been to say what likely happened — that the symptoms were those of benign positional vertigo, a common ED complaint, and that the diagnosis of stroke is easy using hindsight,” says Mims.

It may be tempting for EPs to claim that the correct diagnosis was part of their differential when in fact it was never considered. Instead, advises Mims, “discuss this with your lawyer. Be prepared to explain why it did not figure into your differential.” Here are some ways in which EPs can help their defense:

• Be candid with your lawyer.

“It is very difficult to prepare an adequate defense when the facts change during litigation,” says Mims. “More often than not, this leads to settlement. At times, it creates such a conflict that defense counsel has to withdraw.” Plaintiff’s counsel will quickly pick up on the problem, and is in a prime position to control settlement negotiations.

• Never alter medical records.

“This is a completely devastating tactic employed by some doctors,” says Mims. “If it happens, the case is over — likely at a cost higher than what the case would otherwise be worth.” If, in retrospect, the EP wishes to clarify something in the record — before he or she is aware of a lawsuit — it should be done transparently. “Make it an addendum, and explain your purpose and reasoning,” says Mims. “Do not, for any reason, delete or try to hide what was previously recorded.”

• Immediately notify your insurance carrier, the hospital’s legal representative, and the medical records department.

“The medical records department should immediately sequester the chart so no one can alter the record. The physician will want to review the chart,” says Sandra Schneider, MD, FACEP, chief of the Research Division of Emergency Medicine at North Shore University Hospital in Manhasset, NY. There are generally standard procedures for doing this, she explains, which involve having a legal representative or medical records department representative present at all times.

• Don’t discuss the facts of the case with anyone other than a representative of the malpractice carrier and the attorney, unless advised that it is permissible to do so by the malpractice insurer.

“Insurers and lawyers have been so diligent with these admonitions over the years that this has become more theoretical than real, and I hope it stays that way,” says Marc E. Levsky, MD, a board member of the Walnut Creek, CA-based The Mutual Risk Retention Group, a fellow at PIAA, a Rockville, MD-based insurance trade association, and an EP at Seton Medical Center in Daly City, CA.

At the beginning of virtually every deposition, the deponent is asked by plaintiff’s counsel whether he or she discussed the case with anyone other than a representative of the insurance company or counsel. “If the deponent answers in the affirmative, the people with whom the defendant spoke about the case can be deposed about what the defendant said,” says Levsky.

EPs commonly want to justify their actions, in order to assure themselves that others would have done the same thing. “However, discussing the case with anyone other than the attorney is wrong. This includes other members of the treating team,” says Schneider.

Professional societies, such as the American College of Emergency Physicians, provide assistance for EPs struggling with malpractice litigation. “This is not legal advice, nor can the exact case be discussed,” says Schneider. “However, they can provide support for dealing with the personal toll of getting sued.”

Similarly, insurance companies have begun to implement support programs for physicians involved in medical negligence lawsuits. This allows an insured physician to discuss the emotional and practical ramifications of the litigation process. “That type of discussion can be helpful to the defendant EP, and should not compromise his or her defense in any way,” says Levsky.


Marc E. Levsky, MD, The Mutual Risk Retention Group, Walnut Creek, CA. Phone: (925) 949-0100. E-mail: levskym@tmrrg.com.

Gary Mims, JD, Sickels, Frei and Mims, Fairfax, VA. Phone: (703) 925-0500. Fax: (703) 925-0501. E-mail: gary.mims@sfmlawyers.com.

 Sandra Schneider, MD, FACEP, Chief, Research Division of Emergency Medicine, North Shore University Hospital, Manhasset, NY. Phone: (516) 562-1406. E-mail: sschneide3@nshs.edu.