Will Plaintiff Attorney Sue EP, or Decide Claim Is Unwinnable?
April 1, 2016
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A plaintiff attorney recently filed suit on behalf of a man who presented to an ED with a dog bite injury.
“It became infected and created some degree of chronic deformity of that finger. The attorney thought it looked like a good case,” says Michael Jay Bresler, MD, a clinical professor of emergency medicine at Stanford University School of Medicine.
It soon became apparent the plaintiff attorney hadn’t closely reviewed the ED chart, which stated the man had threatened to kill the EP and nurses. Documentation also indicated the man refused to allow them to clean the wound.
“He was given a prescription for antibiotics, which was never filled. It wasn’t until 6 weeks later that he saw a doctor,” Bresler says. “It was clear from the record that there was no case.”
The attorney sent the EP a notice of intent to sue, and the EP threatened to countersue for malicious prosecution.
“The case never went anywhere,” Bresler says.
Misleading charting caused a plaintiff attorney to name an EP in a lawsuit involving intubation of a post-operative patient. In this case, the EP was called to the ICU to intubate a postop patient.
“The EP couldn’t get the ET tube in, and finally called the anesthesiologist,” says Bresler, who was an expert witness in the litigation.
The EP’s note simply stated, “Couldn’t get the patient intubated.” The anesthesiologist charted, “Multiple attempts by EP, tube was in the esophagus, patient re-intubated.”
“The patient ended up with brain damage,” Bresler says. “From the chart, it appeared the EP had messed up the intubation.”
In subsequent depositions, both the nurse and respiratory therapist stated that the EP had ventilated the patient adequately between attempts. The anesthesiologist was able to get the tube in, but the patient had become hypoxic when the anesthesiologist decided to readjust the tube. Their testimony made it clear that the anesthesiologist was the one who intubated the esophagus.
The plaintiff attorney told Bresler that he never would have named the EP in the lawsuit if the EP’s documentation had been better.
“The anesthesiologist’s misleading documentation — and the EP’s cursory documentation — skewed what really happened,” he explains. “After years of litigation, it turned out that the wrong doctor was sued.”
Most Cases Rejected
Ideally, the ED chart, on its own, will convince any plaintiff attorney or hired expert that the standard of care was met.
“We want it to say everything that we want them to know, without even going to a deposition stage, that it would be a waste of time to pursue the lawsuit,” Bresler says.
The plaintiff attorney must decide if it’s worth paying an expert to review the ED chart.
“If it’s not winnable or it’s marginal, many will just not take the case,” Bresler says. “The plaintiff attorneys that I know and respect say they reject about 90% of cases that are brought to them.”
A record showing referral to a specialist or appropriate tests ordered, with a clear sequence of events and sufficient detail, makes it harder for a plaintiff attorney to bring a case, says Jonathan D. Rubin, JD, an attorney at Kaufman Borgeest & Ryan in New York.
“When it’s not clear about what happened with who and when, it’s problematic,” Rubin says, noting that because plaintiff attorneys work backward, they know a result and look at it in hindsight. “If there are gaps in the chart, they can fill those in with their suppositions and ‘could have beens’ and ‘should have beens.’”
Some cases seem appealing initially, but fall apart under scrutiny. A common example: family members who insist tissue plasminogen activator should have been given to their loved one who suffered a bad outcome after a stroke.
“The attorney may think they have a really good case, but after reviewing the chart, they realize the determination of onset of symptoms was pretty vague,” Rubin says.
Since the odds of plaintiff’s attorney winning a given case are relatively low to begin with, they tend to be selective about which cases they will take, says Marc E. Levsky, MD, vice chair of the board of directors, The Mutual Risk Retention Group. “This is especially true when they are being paid on a contingency — a percentage of any monetary award to the plaintiff,” he notes. Here are some factors plaintiff attorneys consider:
- Whether there was negligence and causation.
“If there is no negligence, or the causation of damages by the alleged negligence is very questionable, the plaintiff’s attorney would be much less likely to take the case, as their chance of success is greatly diminished,” Levsky says.
A family recently threatened to sue an EP because the patient, an 86-year-old man, had allegedly suffered worsening of his condition and death due to ED care.
“The patient, who was being seen in the ED for abdominal pain and suspected sepsis, did indeed have worsening of his CHF [congestive heart failure] after he was treated with IV fluids in the ED,” Levsky says.
The chart indicated that the family told the EP about the fact that the patient was “very fluid-sensitive and tends to go into CHF” only after the fluid had already been given. The treatment the EP provided clearly met the standard of care — for abdominal pain in the elderly, sepsis, and CHF.
“Finally, the patient had a history of end-stage lymphoma, which itself carried a very poor prognosis,” Levsky explains. “Given that his death came two months after the episode of ED care in question, causation was lacking.”
When the EP received the complaint and 90-day notice of intent to file suit, it notably came from the patient’s daughter and not from an attorney.
“We surmise that the patient’s family could not find an attorney who was willing to take the case. The lawsuit was never filed,” Levsky adds.
- The potential for damages.
“Plaintiff attorneys are more likely to gamble on a weak case if the potential award for damages is large,” Levsky says.
For example, attorneys likely would reject a claim involving the death of a very elderly person who suffered from multiple medical problems, without even reviewing the records.
“Damages would likely be small, and causation would be hard to prove,” Levsky explains.
- Whether there was contributory negligence on the part of the patient or family.
Did the patient fail to adhere to the EP’s documented recommendations?
“This would make the case harder to win,” Levsky says.
- Whether there was questionable plaintiff behavior.
Even a strong malpractice case gets complicated if the patient used inappropriate language, was violent in the ED, or had a history of substance abuse or criminal acts.
“A jury would probably be less sympathetic toward a plaintiff who is alleging that he was injured by a physician who was trying to treat his injuries, which he sustained while being arrested for robbing a liquor store,” Levsky says.
The defense attorney would have little trouble questioning the credibility of this plaintiff. Documentation showing the EP spent a great deal of time with the patient, and that the patient was satisfied with the care, also makes the case less appealing.
“If the attorney gets the sense that the jury would be more sympathetic to the physician than the patient, they would be less likely to take the case,” Levsky says.
- Whether the plaintiff is being truthful.
One patient sued an EP, alleging that he was rendered completely disabled and nearly paralyzed due to ED care.
“During the trial, he was shown on video swimming long distances in the ocean and playing golf,” Levsky notes.
In another case, a deceased patient’s wife stated in a deposition that her husband had never been denied life insurance. In the patient’s medical records, there was a signed note from her to the patient’s primary physician requesting help because the patient had been denied life insurance.
“The plaintiff’s attorneys in both of these cases lost a significant investment of resources,” Levsky says.
SOURCES
- Michael Jay Bresler, MD, Clinical Professor of Emergency Medicine, Stanford University School of Medicine. Email: [email protected].
- Marc E. Levsky, MD, The Mutual Risk Retention Group, Walnut Creek, CA. Phone: (925) 949-0100. Fax: (925) 262-1763. Email: [email protected].
- Jonathan D. Rubin, JD, Kaufman Borgeest & Ryan, New York. Phone: (212) 994-6515. Fax: (212) 980-9291. Email: [email protected].
ED chart can prevent — or inflame — litigation.
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