Did a patient wait too long to come to the ED, fail to follow discharge instructions, or hide important information about his or her medical history? If the patient later sues for malpractice, his or her own actions can be part of the emergency physician (EP’s) defense.
In some instances, the actions or omissions of the patients themselves rise to the level of “contributory negligence” or “comparative negligence.”
“When that occurs, it creates some opportunities for physicians facing medical negligence actions,” says Bobbie S. Sprader, JD, an attorney at Bricker & Eckler in Columbus, OH.
Asserting contributory or comparative negligence can be an effective strategy for an EP to reduce or eliminate his or her responsibility for any harm the patient alleges to have sustained.
“Because the plaintiff may be seen as a victim by the jury, this needs to be done thoughtfully, but it can be done effectively,” Sprader notes.
These legal doctrines refer to situations in which the patient’s own actions or inactions are found to be negligent and to have contributed to whatever harm they allege to have experienced.
“How this is applied will vary by state, but it can reduce or completely eliminate any recovery by a patient, even if he or she is able to prove that the physician was also negligent,” Sprader explains.
In Ohio, for example, Revised Code Section 2307.22 provides that if a jury finds more than one person negligent, each person is only responsible for his or her proportionate share of the non-economic damages. If any one defendant is found to be more than 50% responsible, he or she will be 100% responsible for any economic loss. However, if no one defendant is found to be more than 50% responsible, then each negligent person will only be responsible for his or her proportionate share of economic losses as well.
“This includes such things as past and future medical expenses and lost wages,” Sprader notes.
The total amount of responsibility allocated by a jury must equal 100%, but the jury can allocate responsibility to the plaintiff and to nonparties.
“Any percentage of responsibility allocated to either the plaintiff or a nonparty is a percentage that will not be the responsibility of any of the defendants,” Sprader says.
Here is an example of how this works: A plaintiff brings a lawsuit against an EP and a physician assistant (PA) and receives a judgment of $1 million. The jury completed an interrogatory allocating 25% responsibility to the plaintiff, 25% to the physician, 25% to the PA, and 25% to the general surgeon whom the EP consulted but did not name.
“In Ohio, the physician and PA would each only be responsible for paying the plaintiff $250,000 — 25% of $1 million,” Sprader says, noting the plaintiff would have to bring a separate action against the general surgeon who was not named to receive any recovery. “The plaintiff will not be able to recover the amount that was attributed to his or her own negligence — from anyone.”
Defendants need to be thoughtful with respect to how they “blame” an injured plaintiff for his or her injuries, Sprader cautions. Important considerations are the nature and extent of injuries involved and the expected degree of sympathy the jury may have for the plaintiff.
“It may be best to provide the jury with the information they need to identify the plaintiff’s negligence on their own, and then ask them to consider that factor in their deliberations,” Sprader suggests.
In other cases, it may be appropriate to overtly blame the plaintiff for what happened and ask the jury to attribute 100% responsibility to the plaintiff.
“This will always be a judgment call by the defendant and her counsel,” Sprader says. Here are two common examples of an ED patient’s contributory or comparative negligence:
- The patient did not follow ED discharge instructions.
“Once the patient leaves the ED, the physician has absolutely no ability to monitor the patient’s condition,” Sprader says. If the patient receives instructions to “return to the ED if symptoms progress or do not improve in the next four to six hours” and does not return for three days only to report progression over that entire time frame, there is a good basis for a contributory negligence claim.
“To take full advantage of this situation, it would be best if the discharge instructions were signed by the patient after they were reviewed with her by someone — physician or nurse — who also signed them and then gave a copy to the patient to take home,” Sprader recommends.
- The patient omits important information about his or her medical history, such as a drug allergy or known diagnosis.
“However, the argument made in this type of situation is the information was available to the EP, either in the system from a prior visit or from another provider,” Sprader explains.
Unfortunately, there is often no time in the ED setting to hunt down information from all available sources.
“Therefore, documenting what the patient reported and whether the patient appeared to be a good historian are a couple of ways to protect the physician from responsibility for an inaccurate history,” Sprader adds.
Ryan M. Shuirman, JD, an attorney at Raleigh, NC-based Yates, McLamb & Weyher, says “contributory negligence” is a somewhat antiquated concept that only a handful of U.S. jurisdictions still follow. North Carolina is one of those.
“True contributory negligence bars a plaintiff’s recovery completely if the plaintiff was in any way, regardless of how insignificant, responsible for her adverse outcome through her own negligence,” Shuirman explains. In contrast, comparative negligence, followed in the majority of jurisdictions, generally asks a jury to apportion damages depending on the level of defendant fault.
“Contributory negligence, because it acts as a complete bar to recovery, is a real threat to a plaintiff in any lawsuit in which the plaintiff’s own conduct is questionable,” Shuirman says. It can dissuade a plaintiff’s lawyer from even taking a case, and usually can be used as a means of mitigating damages during settlement negotiations.
A common scenario is the inebriated patient who fails to provide the EP with an adequate history, which would have made a difference in the decision-making process. Another common scenario is an ED patient who leaves against medical advice (AMA) and experiences a bad outcome.
“While that patient likely will complain about the treatment provided, which compelled her to leave AMA, if a jury finds that her decision to leave was unreasonable, she would be contributorily negligent, and she would be barred from recovering any damages in our state,” Shuirman says.
Shuirman notes one should distinguish this from attempts to blame a patient for bad choices that led to comorbidities. “Attempts to blame an obese smoker for a myocardial infarction occurring after a questionable discharge from the ED likely will not be successful,” Shuirman warns.
Just as a plaintiff has the burden of proving the EP is negligent, the defendant EP has the burden of proving that the ED patient was negligent.
“This typically means that the defendant must prove not only that the plaintiff patient acted unreasonably, but also that the plaintiff patient’s unreasonable conduct was a proximate cause of her damages,” Shuirman notes.
Shuirman says a decision about whether to assert contributory negligence must be made at the time of responding to the initial complaint. However, “the assertion typically can be alleged in a somewhat benign fashion, allowing for the prospect that discovery may or may not support the assertion,” he says.
There is no doubt asserting contributory negligence can inflame a plaintiff. “It can prove to be an obstacle to resolving a case that needs to be resolved for other reasons,” Shuirman notes. EPs should consider asserting a contributory negligence defense if they truly believe the plaintiff has been unreasonable, he says. “But later withdrawing it does not necessarily protect you from a jury hearing that your initial reaction to being sued was to blame the plaintiff rather than objectively assessing your own conduct,” Shuirman cautions.
Shuirman says if EPs encounter a patient who appears to be acting unreasonably, the best defense comes from thorough documentation of the patient’s behavior and how the patient’s behavior limits the EP’s ability to deliver care effectively.
“Document whenever the patient provides you history that you question or otherwise is in a state where she cannot be trusted to be providing accurate information so that it is clear how that misinformation impacted your decision-making,” Shuirman says.
Even if the EP’s state does not recognize true contributory negligence, jurors use common sense to analyze whether a plaintiff patient has been reasonable.
“You have to have faith that jurors will see through an unreasonable plaintiff’s story and want to believe that you, as a provider, were put in an untenable position by the plaintiff being unreasonable,” Shuirman says.