Understandably, emergency physicians (EPs) who believe that allegations of malpractice are unfounded don’t want to suffer through litigation one minute longer than necessary. However, getting “out” of a claim, regardless of the merits of the case against the EP, is often no easy task.
The safest route for a plaintiff is to sue everyone involved in the patient’s care for malpractice and then use the discovery process to figure out who is actually liable, says Christopher Robertson, JD, PhD, associate professor at University of Arizona’s James E. Rogers College of Law.
“And that approach is not necessarily improper,” he adds. If the discovery process exonerates one defendant, the plaintiff is often happy to let him or her go — as long as there is a strong case against another defendant.
Regardless of the facts of the specific case, malpractice litigation is likely to drag on much longer than the EP is comfortable with. “Oftentimes physicians think, ‘Why am I still in this? Why isn’t something happening?’” says Michael J. Sacopulos, JD, founder and president of the Terre Haute, IN-based Medical Risk Institute. “The way the system is set up, it does not quickly adjudicate cases. We can have months with no activity.” Here are some factors that can determine whether an EP can be dismissed from a malpractice claim:
• Dismissal is more likely if the lawsuit is mainly focused on a physician in a different specialty, and the EP is named along with multiple other physicians.
For instance, a malpractice case may allege that the patient had a bad outcome because of a mistake made by a surgeon, and the EP is only named because the patient was admitted from the ED. “That’s a situation where it’s easier to get out of a case because there are still other people left in it,” says Sacopulos.
• Dismissal is more likely if the exonerated defendant is willing to serve as a friendly, or at least reliably neutral, fact witness, in a way that benefits the plaintiff.
“In my view, one of the best ways to get dismissed is actually to show the defense attorneys that you will be more helpful to them as a witness than as a defendant,” says Robertson. A signed affidavit can help reassure the plaintiff that he is not letting go of the wrong person when dismissing the EP.
“The fact that an affidavit is sworn under penalty of perjury helps to make sure that no surprises pop up later to hurt the plaintiff,” adds Robertson. Such an affidavit might attest that the EP did not treat the plaintiff, and/or establish whatever facts that the plaintiff believes may be useful against the other EP defendant.
“Nonetheless, it may turn out that the emergency physician still has to testify to those same facts in deposition and/or trial, depending on how important they are to the case,” says Robertson.
• The EP’s defense attorney can move for dismissal if allegations of negligence are not made against the EP specifically.
“One potential response to such a motion, however, is for the plaintiff to simply amend the complaint to properly state such a claim,” says Robertson. If such allegations are made against the EP in bad faith, however, there may be a basis for disciplining an attorney. “Sometimes a strongly worded letter can nudge an attorney towards a voluntary dismissal,” says Robertson.
If the allegations in the complaint are completely frivolous, as they relate to one of the defendants, then that defendant’s attorney could threaten discipline against the plaintiff’s attorney, with the court or the bar. “However, it bears emphasis that the plaintiff has a right to conduct discovery,” says Robertson. “So there is a judgment call here as to whether the plaintiff’s attorney is breaking any rules.”
In some cases, a friendly phone call may work better than a stern letter. “The plaintiff’s attorney ultimately just wants to get whomever is actually liable,” says Robertson. “Ultimately, however, defendants may have to wait until summary judgment, once discovery is held.”
• Dismissal is more likely if the EP is helpful to the defense attorney.
Sacopulos says it’s particularly helpful if the EP writes a narrative stating what they’ve alleged to have done wrong, and any information that refutes it. “The easier that you can make it to get you out, the quicker that can happen,” he says. “I always enjoy it when my clients are proactive and provide me with information, instead of just saying, ‘Here’s a big file; good luck to you.’”
• Dismissal is less likely if the EP places blame on co-defendants during the discovery process.
“In an effort to get out of a case, the EP says, ‘It wasn’t me. So and so made the mistake.’ But all the EP is doing is digging the hole deeper. I see that happen often,” says Sacopulos.
During the EP’s deposition, the plaintiff attorney is likely to ask a question such as, “The patient was also seen by Dr. X, who did A, B, and C. Do you think that was appropriate?” The EP will invite trouble if he or she makes disparaging comments such as “I personally don’t believe the care was appropriate,” or “Well, he never orders CT scans.”
A better answer is, “I don’t practice that area of medicine so I’m not the right one to ask what the standard of care is.”
“Nothing good that can happen to you by talking about other people’s care. You need to focus on your care,” says Sacopulos. “Was somebody else negligent? That’s not your responsibility.”
There are many ways in which two EPs, jointly named in a malpractice suit, could be pitted against each other, says Robertson. For example, one EP may observe the plaintiff’s condition, prior to departing, in a way that establishes certain facts that the plaintiff would like to prove against the other defendant.
“Likewise, an emergency physician might be able to speak to staffing levels, equipment levels, or even the treatments that were provided by another emergency physician,” says Robertson.
Such finger-pointing gives the plaintiff attorney a good reason to keep the EP in the case as long as possible. “Expert witness testimony is expensive,” says Sacopulos. “If you can get it for free from one of the defendants, you don’t want to have them dismissed and go pay for it.”
• Christopher Robertson, JD, PhD, Associate Professor, James E. Rogers College of Law, University of Arizona, Tucson. Phone: (520) 621-1289. E-mail: firstname.lastname@example.org.
• Michael J. Sacopulos, JD, Founder and President, Medical Risk Institute, Terre Haute, IN. Phone: (812) 241-8995. E-mail: email@example.com.