It is often very difficult for the plaintiff’s attorney to prove causation — one of the four elements of a medical malpractice claim, along with duty, breach, and damages — against an emergency physician (EP), says Ken Zafren, MD, FAAEM, FACEP, EMS medical director for the state of Alaska and clinical professor in the Department of Emergency Medicine at Stanford University Medical Center.
“The burden of proof rests with the plaintiff,” Zafren says.
The plaintiff’s attorney must prove that the EP breached the standard of care, and that the breach caused the alleged damages.
“A common way of stating this is, ‘But for the physician’s breach of the standard of care, the patient would not have sustained the alleged damages,’” Zafren adds.
It is generally easier for a plaintiff’s attorney to establish causation in cases of commission, where it’s alleged that the EP did something that harmed the patient, than in cases of omission, where it’s alleged that the EP’s failure to do something harmed the patient, Zafren says.
“The defendant’s attorney can still claim that there were mitigating factors,” he explains.
There are two common mitigating factors: delay in the patient’s presentation and the seriousness of the patient’s condition.
“These sometimes occur together,” Zafren notes. “A case in which the patient had a critical illness or injury that led to major morbidity or death can pose great difficulty for a plaintiff’s attorney.”
In cases of serious conditions causing death, the mitigating factor is sometimes referred to as the “dead man (or woman) walking” defense.
“The defendant’s attorney can argue that the condition was so serious at the time of initial presentation, that the EP could not have done anything to prevent the patient’s inevitable death,” Zafren says.
Zafren was the plaintiffs’ expert in a malpractice claim against an EP who misdiagnosed bacteremia due to a painful septic prosthetic hip joint as pyelonephritis.1
“The patient was admitted when the blood culture from the first visit, ordered by an alert physician’s assistant, came back positive for MRSA,” Zafren says.
Two hospitalists failed to diagnose the source of the bacteremia for several days.
“By the time the hospitalists consulted an infectious disease specialist who identified the hip joint as the source, the patient had irreversible multi-organ system failure that led to his death,” Zafren says.
The defendant EP’s attorney claimed that the patient would have died from MRSA septicemia even if the EP had made the correct diagnosis and consulted an orthopedic surgeon at the initial visit.
The case resulted in a defense verdict for the EP, largely due to the testimony of an emergency medicine expert who testified that infections of long-standing prosthetic joints are so rare that the EP could not have been expected to make the diagnosis.
“In other words, that there was no breach of the standard of care,” Zafren says.
Another malpractice case involved a patient who developed compartment syndrome of the hand after extravasation of radiocontrast dye that was administered for a CT of the abdomen and pelvis with contrast.2 The EP discharged the patient with compartment syndrome. The patient subsequently required fasciotomy.
“The case settled for a relatively low amount because the patient recovered substantial function in the affected hand,” Zafren says. “In this case, the mitigating factor involved damages rather than causation.”
Breaches of omission are more common than breaches of commission, Zafren notes. The plaintiff’s attorney might allege that failure to diagnose appendicitis on the patient’s first ED visit led to damages because the appendix perforated.
However, Zafren adds, “the defendant’s attorney may counter that the initial presentation was not clearly that of appendicitis, and that it was not a breach of the standard of care to send the patient home with close follow-up and return precautions.”
Technical Jargon Is Challenge
Juries typically place more weight on an EP’s breaching the standard of care than on causation, according to Stephen A. Barnes, MD, JD, FACLM, a trial attorney at McGehee Chang Barnes & Landgraf in Houston.
“Causation is often a murky area replete with esoteric expert witness testimony,” he says. “Jurors are not doctors. The technical jargon associated with pathophysiology is hard to understand.”
The science behind even the most basic disease mechanisms is often hotly contested.
“In causation analyses, timing is everything,” Barnes says, providing an example of a patient who arrived at the ED 40 minutes after the onset of a heart attack but lost a critical amount of muscle after only 30 minutes. “The doctor wins even if he delayed the diagnosis. But if the critical timing is 120 minutes, the doctor loses,” Barnes warns.
Therefore, to establish causation, experts often argue over issues such as “At what time, to the hour and minute, did this patient’s heart suffer permanent damage during a myocardial infarction?” or “What is the mechanism involved for irreversible septic shock and multi-system organ failure, and at what time did that irreversibility occur?”
“It’s understandable that jurors often are confused about causation testimony,” Barnes says. “After all, which expert should they believe?”
Causation testimony stands in stark contrast to testimony and evidence regarding breaches in the standard of care. Those are much easier for a jury to understand, Barnes says, because standard of care questions concern physician examinations, testing, and treatment plans, which all jurors experience at some time in their lives.
“Having been patients themselves, jurors are very adept at recognizing arguments about what a doctor should or should not do during a patient encounter,” Barnes says.
For instance, the plaintiff attorney might state, “Had the doctor simply ordered a CT scan, we wouldn’t be here today.”
In Barnes’ experience, if there are clear breaches in the standard of care, a jury will often disregard the technical jargon associated with causation arguments, which may have been in favor of the EP, and find the EP liable.
One lawsuit alleged permanent paralysis due to a delay in treating a spinal abscess. “The jury, interviewed after the verdict for the plaintiff, gave little weight to the battle of the experts regarding when a spinal cord abscess creates permanent injury — hours versus days,” Barnes says.
Instead, the jury concentrated on the fact that the EP did not document a basic lower extremity neurological examination when the patient’s presenting complaint was extreme weakness in her legs.
“While experts battled at trial over whether it was already too late to save the plaintiff when she arrived at the hospital — a causation dispute — the jury instead was bewildered by the negligence of an absent neuro exam,” Barnes says.
If the EP clearly failed to provide a thorough evaluation pertinent to the patient’s complaint, any problem with causation usually shifts in favor of the plaintiff, Barnes notes.
“Juries will be hard pressed to reverse their findings against a doctor because paid experts argue about microcirculation or blood flow, timing of inflammatory reactions, and other scientifically ‘heavy’ causation elements,” Barnes explains.
Barnes advises EPs to rely on a causation defense only as a last resort, and instead, always perform a complete and thorough assessment and treatment of a patient.
“If you can tell a jury that you did all you could to try to diagnose and treat the plaintiff, you are in a far better position to present a causation defense as an additional reason to find in favor of the EP than those doctors who cannot say that they did everything for the patient,” Barnes says.
Hanson v. Auburn Regional Medical Center. King Cty WA 06-2-18108 KNT.
Figueroa v. Highline Medical Center. King Cty WA 08-2-43576-8.
Stephen A. Barnes, MD, JD, FACLM, McGehee Chang Barnes Landgraf, Houston. Email: [email protected]
Ken Zafren, MD, FAAEM, FACEP, Alaska Native Medical Center, Anchorage, AK. Phone: (907) 346-2333. Fax: (907) 346-4445. Email: [email protected]
Standards Vary on Causation Evidence
The standard for causation does not vary from state to state regarding the legal theory that it was foreseeable that a negligent act could cause a bad outcome.
“States do vary, however, in the doctrine of causation ‘risk.’ Also, states vary in what they will allow in as causation evidence,” says Stephen A. Barnes, MD, JD, FACLM, a trial attorney at McGehee Chang Barnes & Landgraf in Houston.
Some states are very strict with the allowable science. The causation testimony must be based on reproducible peer-reviewed studies and accepted by at least some respected portion of the medical community. In other states, the evidentiary standard for causation is lower.
“Publications that are not peer-reviewed, such as case reports, may come in. A physician’s own personal experience can come in,” Barnes says. For instance, an EP might testify “In my experience, the appendix perforates three days after acute appendicitis develops.”
“The logic behind each state’s causation evidentiary requirement varies between ‘hardcore’ states that treat the judge like a scientific gatekeeper, and ‘softer’ states that believe that judges are not scientists and the jury can figure out the science based on rigorous cross-examination of the experts,” Barnes explains.
Some states allow, and others do not allow, lawsuits based on “loss of chance.” Barnes provides an example of a patient who arrives at the ED with cough and sputum production. An EP misreads a chest X-ray as normal, when in fact there is a lung mass. Months later, the patient is diagnosed with a form of lung cancer that now has a 5% five-year survival rate. Had the EP not misread the chest X-ray months earlier, the survival rate would have been 40%.
“In some states, the patient can sue for his lost 35% chance of survival,” Barnes says. In other states, the patient may sue under this “lost chance” doctrine only if the likelihood of survival would have been greater than 50% at the time of that chest X-ray. “In still other states, no such ‘lost chance’ applies at all,” Barnes adds.