A defendant emergency physician’s (EP’s) interests sometimes conflict with others named in a malpractice suit, but defense attorneys may be inclined to push a joint defense if retained to represent both parties. EPs should seek outside counsel if:
- a co-defendant comments negatively on the EP’s care;
- the claim could exceed the EP’s coverage limits;
- any allegations aren’t covered by the EP’s professional liability policy.
A triage nurse mistakenly notes a patient’s reported chest pain as musculoskeletal. The patient receives medication, the chest pain resolves prior to the emergency physician’s (EP) exam, and the chest pain complaint is not reported on exam. Thus, the EP discharges the patient with no knowledge of the chest pain finding. The patient dies related to acute coronary syndrome some time later.
In this hypothetical example, a lawyer representing both the nurse and the EP possibly could develop a joint defense theory, says Jesse K. Broocker, JD, an attorney at Weathington Smith in Atlanta. Both defendants could argue that the lack of noting chest pain was of no consequence, since the patient’s presentation and course otherwise did not indicate acute coronary syndrome.
On the other hand, the EP might be better off using a different defense strategy. If the EP asserts he or she never knew about the chest pain finding, this spotlights the nurse’s failure to communicate.
“Of course, this defense may very well lead to questions regarding the EP’s failure to discover the chest pain complaint,” Broocker notes. The EP and attorney must engage in a case-specific analysis. “Weigh the pros and cons of each approach,” Broocker adds.
If an EP suspects a co-defendant is complicating his or her own defense in any way, it’s important to convey this concern to the attorney and insurance representative.
“The truth may be that the lawyer feels some pressure to ‘force’ the joint defense, as he or she was retained to represent both parties,” Broocker says.
In Georgia, it is rare that a hospital and EP retain the same counsel, as hospital EDs typically are staffed through a contractor with separate insurance. Even so, it sometimes is challenging for the hospital and the EP to present a united defense.
“Since ED cases are often time sensitive, the longer things go missed, the worse the outcome,” Broocker warns, noting that one defendant sometimes blames another. “An easy defense for nurses is to maintain they made the doctor aware of their findings in real-time,” he adds.
Hospital policies are another complicating factor. As independent contractors providing services at the hospital, EPs are not beholden to the hospital’s policies and procedures — only the applicable standard of care.
“Plaintiff counsel sets these as a de facto standard of care that is almost never followed to a T by the staff,” Broocker explains. “We try to distance ourselves from those.”
Here are some scenarios in which a defendant EP should consider retaining separate counsel:
- If one defendant points the finger at another.
It is best for all defendants in a malpractice lawsuit to present a united defense. “However, there are occasions when conflicts arise between the parties,” says Carol Ann Lobacz, LHRM, a claim consultant at Nancy Carr Claims and Risk Management Services in Miami.
During a deposition, one physician client sometimes comments negatively on the treatment provided by another physician client or hospital client.
“A client may claim that but for that omission or commission, the patient would not have sustained an injury,” Lobacz says.
If an attorney represents multiple healthcare providers in a claim or lawsuit, sometimes the defense of one or more parties will be adverse to another client.
“In such cases, separate counsel should be retained for the affected defendant,” Lobacz advises.
- If there is a reasonable risk that the claim made against the EP could exceed the amount of coverage available under their professional liability policy.
Both defense counsel and the insurance provider carry an ethical responsibility to advise their clients of this possibility because the clients could be personally responsible for any amount of a judgment above their policy limits.
“However, a physician would be well-served to seek independent advice from outside counsel,” Lobacz says.
- If allegations in malpractice lawsuits are not covered under the EP’s professional liability policy.
“Until such allegations are proven or disproven, the carrier has a fiduciary duty to their insureds to provide a defense, but not indemnification, for alleged uninsured acts,” Lobacz says.
Examples of acts not typically covered by malpractice insurance include:
- injury or damage resulting from a medical incident that also is a willful violation of a statute, ordinance, or regulation imposing criminal penalties;
- allegations of sexual intimacy, sexual molestation, or sexual assault by the insured or any person for whose acts or omissions the physician is legally responsible;
- anti-trust law violations;
- causing or contributing to the intoxication of any person.
“Separate counsel will be in a position to advise the physician of his or her rights under the policy and to explain the exposure for uncovered claims,” Lobacz says.
- If the EP lacks confidence in the defense attorney.
“They have the right to discuss their opinions with counsel and the insurance carrier and request separate counsel,” Lobacz says.
- Jesse K. Broocker, JD, Weathington Smith, Atlanta. Phone: (404) 524-1600. Fax: (404) 524-1610. Email: JBroocker@weathingtonsmith.com.
- Carol Ann Lobacz, LHRM, Claim Consultant, Nancy Carr Claims and Risk Management Services, Miami. Phone: (305) 274-4070. Fax: (305) 274-2701. Email: email@example.com.