Virtually every malpractice lawsuit against an emergency physician (EP) involves a conflict over whether the standard of care was met. “Breach of the standard of care is one of four things that must be proven in order to win a medical malpractice lawsuit; appropriate medical care would negate a medical malpractice claim,” explains William Sullivan, DO, JD, FACEP, an EP at University of Illinois Hospital in Chicago and a practicing attorney in Frankfort, IL.
The plaintiff must also prove existence of a doctor-patient relationship, a link between the physician’s negligence and the patient’s injury, and damages. “It is important to remember that the standard of care is always a case-specific and fact-specific determination,” says William M. McDonnell, MD, JD, clinical service chief of pediatric emergency medicine and medical director of the emergency department (ED) at Children’s Hospital & Medical Center in Omaha, NE.
“Commentators often improperly refer to a particular policy or journal article as setting the standard of care,” he notes. “There is no universal standard of care.”
In any malpractice case, says McDonnell, the standard of care is whatever a judge or jury, after hearing all of the evidence, decides is the reasonable care, skill, and diligence that other physicians in the same general line of practice ordinarily have and exercise in like cases. “Attorneys on both sides of the case will try to convince the judge/jurors that a reasonable physician would or would not have done what the plaintiff did, usually turning to expert witnesses to describe what ‘reasonable’ care would have been,” says McDonnell.
Here are some examples of how the standard of care can be established in medical malpractice litigation:
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Medical literature, or product inserts, or “black box” warnings can sometimes be used to establish the standard of care.
“There are outlier cases stating that the PDR [Physicians’ Desk Reference] establishes the standard of care,” notes Sullivan. “But even then, the plaintiff must still prove causation — that the failure to follow the PDR recommendations caused the injuries.”1 In most cases, the PDR can be used as a basis to establish the standard of care, but the standard still needs to be established by expert testimony.
Regarding medications, Sullivan says “the typical defense argument is that even if a medication has not been approved for a specific use in a specific dose, it is entirely appropriate to use the medication for ‘off-label’ uses, provided that there is a reasonable basis for doing so.” For example, clonidine is only approved for treatment of hypertension and is not approved for use in children. “However, it is frequently prescribed in higher than recommended doses to adults for alcohol and opiate withdrawal, and is also prescribed for children with ADHD [attention deficit hyperactivity disorder],” he notes.
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Hospital policies can be used to establish the standard of care.
“One of the first things that plaintiff attorneys will ask for during discovery is a set of hospital policies relating to any of the incidents in question,” says Sullivan. If the hospital policies were not followed, the attorneys can argue that the standard of care was not met — even if those policies exceed the legal standard of care.
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Admissions that a physician makes during depositions or during trial can be used to prove that the physician breached the standard of care.
“In some cases, a physician can be his or her own worst enemy,” says Sullivan. One malpractice case involved an ED patient who presented with tongue swelling, dyspnea, and difficulty speaking, presumed to be a reaction to the antibiotic the patient was taking for a fever. “It turned out that the patient had endocarditis, which went undiagnosed, and later caused the patient to have a stroke,” says Sullivan.2
The EP did not hear a heart murmur during the visit, and there was no expert testimony stating that the standard of care required the physician to hear a heart murmur. However, during his testimony, the EP admitted that the patient probably did have a heart murmur, that he failed to hear a murmur, that endocarditis should have been considered given the patient’s symptoms, and that he might have diagnosed the patient’s endocarditis if he had heard the patient’s heart murmur. “Using those admissions of negligence, the jury entered a verdict for $18.5 million,” says Sullivan.
Sullivan says that instead, the EP should have responded that tongue swelling, dyspnea, and difficulty speaking are not signs of endocarditis, and that the EP’s goal, given the patient’s symptoms at that time, was to protect the patient’s airway and to evaluate the patient for causes of the presenting symptoms.
“This type of scenario highlights the importance of being fully prepared for a deposition,” says Sullivan. “A physician’s defense attorney should thoroughly discuss the types of questions that will be asked, and how to respond to ambiguous, conclusory, or inappropriate questions.”
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The most common way that the standard of care is proven is by expert witness testimony.
The plaintiff’s expert reviews the medical care provided and then alleges that the standard of care was not followed in some way; a defense expert then reviews the same data and opines that the standard of care was met. “If the case goes to trial, the jury gets to decide which expert’s opinion is more convincing,” says Sullivan. “Unfortunately, many times there is little consistency over what experts will testify about, with some experts creating unrealistic standards.”
Requirements to be qualified as an expert are state-specific. “Some states require the same specialty, some don’t,” says Sullivan. “For example, some states allow a neurologist to testify about how an emergency physician should have handled a stroke.” A 2012 Georgia case included testimony from a prominent emergency physician stating that it was grossly negligent not to order a CT angiogram in a 15-year-old patient with chest pain who had an arthroscopic knee surgery eight days prior.3 “The defense had to use expert testimony to counter that gross negligence occurred, but the plaintiff’s expert was the author of a prominent textbook in emergency medicine,” says Sullivan.
One way for an EP to help the defense attorney refute the expert’s testimony is to find old testimony from the expert which conflicts with the current testimony; the EP can also find literature that counters the expert’s assertions, which can be presented through the defense expert.
In every jurisdiction, qualified experts are permitted to reference professional organizations’ policy and clinical guidance documents as support for their opinions. McDonnell gives this example of how an expert witness for the plaintiff typically testifies: “As an expert in emergency medicine, I think Dr. Reckless was negligent in her care. I’m sure about my opinion because the American College of Emergency Physicians’ policy on procedural sedations says so.”
“Some courts are even allowing such professional organizations’ policy and clinical documents to be introduced on their own merits, as evidence of what a ‘reasonable physician’ would have done — even if an expert witness is not testifying about the policy,” says McDonnell.
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Paul v. Boschenstein 105 A.D.2d 248 (1984)
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Tierney v. Community Memorial General Hospital 645 NE2d 284 (1994)
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Johnson v. Omondi, 318 Ga. App. 787 (736 SE2d 129) (2012)
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William M. McDonnell, MD, JD, Clinical Service Chief, Pediatric Emergency Medicine/Medical Director, Emergency Department, Children’s Hospital & Medical Center, Omaha, NE. Phone: (402) 955-5140. E-mail: [email protected].
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William Sullivan, DO, JD, Frankfort, IL. Phone: (708) 323-1015. E-mail: [email protected].
