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EPs who find themselves named as defendants may view the situation as a frivolous lawsuit, but they need a reality check.
“All cases are serious events. They rarely just go away on their own,” warns Scott Martin, JD, senior counsel with Husch Blackwell in Kansas City, MO.
In some states, plaintiff’s attorneys are required to file an affidavit stating that an identified healthcare provider believes that the care provided did not meet the appropriate standard of care, and that this violation caused damage to the plaintiff.
“To some extent, this weeds out many frivolous cases,” Martin says.
One reason is that it requires the plaintiff’s attorneys to retain and identify experts earlier in the litigation process.
“Without this affidavit deadline, all parties may have spent substantial time and resources in a case where no expert was available to support plaintiff’s claims,” Martin explains.
As corporate director of enterprise risk management and internal counsel for Lafayette, LA-based Schumacher Clinical Partners, Brandon K. Stelly often hears EP defendants describing a claim as “frivolous.”
“Sometimes they’re right, but sometimes the claim has some teeth,” Stelly says. “I engage the EP in a discussion and explain the reality of the situation.”
In Stelly’s experience, just one of every 100 claims truly is frivolous, and about the same percentage is completely indefensible.
“The other 98% fall into the spectrum of more defensible or less defensible,” he says.
Virtually all ED malpractice claims have strengths and weaknesses.
“What I tell EPs all the time is that which one of those strengths or weaknesses the jury chooses to hang its hat on is anybody’s guess,” Stelly says.
However, an EP’s ill-advised actions can strengthen weak malpractice cases. EPs can avoid worsening their legal troubles by heeding these recommendations:
“The primary exceptions to this rule would be peer review and patient safety work product,” Martin says. In most situations, peer review and patient safety work product would have been completed significantly prior to the filing of a lawsuit, he notes.
If the EP vents to a colleague by saying something like “Can you believe this?”, it could cause unexpected problems for both of them. When the defendant EP is deposed, one of the first questions will be, “Did you speak to anybody about this?”
“If the EP says, ‘Dr. Smith,’ they may go out and depose Dr. Smith, who is not going to be too happy about that,” Stelly warns.
“I have never seen this in my own practice, but I am aware of a few occasions when this has happened,” Martin says. “In all of those situations, the case became indefensible.”
That’s only one consequence of altering a medical record. “In addition, you have now crossed over into the world of fraud, which many insurance policies exclude,” Stelly cautions.
If the EP chooses to affix an addendum to the chart, it should be dated properly and clearly marked as such. Stelly typically advises against doing this, even with the best intentions.
“Even if the EP is absolutely truthful, you can fully expect the attorney to paint it in a negative light,” he says.
Typically, the chart is corrected after the EP has received a notice of complaint. This in itself appears suspicious.
“EPs tend to overembellish or minimize some things. Sometimes they write in an overly defensive manner,” Stelly says. “Inevitably, it leads to some provable inconsistency between the addendum and the actual treatment, which will allow the plaintiff attorney to make it look like the EP was trying to cover up something.”
Martin has seen multiple cases in which a non-defendant physician agrees to meet with a plaintiff’s attorney to discuss a claim.
“The non-defendant believes, often mistakenly, that if he or she provides some general assistance to the plaintiff’s attorney, that this will keep the spotlight only on the defendant physician,” Martin says.
If the non-defendant criticizes the defendant EP’s treatment, this will oftentimes result in the defendant EP responding in kind — by pointing the finger at the non-defendant.
“The plaintiff’s attorney then simply adds the additional physician as a defendant and lets the jury decide which physician[s] to blame,” Martin notes.
If a colleague is critical of the EP’s care, he or she could end up testifying against the EP.
“There is also the possibility that this colleague may also be a supervisor or in an administrative position to make admissions on behalf of the ED physician’s employer,” Martin adds.
“This will make sure that you have the correct insurance coverage for this incident,” Martin says.
Even if a claim is frivolous, the single worst thing an EP can do is fail to report it.
“These people have gone through the trouble of meeting with an attorney who then drafts a petition and spends the money to file it with the court,” Stelly says.
If the EP simply ignores a served lawsuit after the procedural deadlines have passed, his or her legal problems will be compounded quickly. The plaintiff attorney will request, and is likely to obtain, a default judgment.
“The claim that was once defensible is now indefensible. You already lost it before you even got to state your case.”
In rare cases, Stelly first learns about a malpractice suit not from the EP defendant, but from the opposing attorney.
“Sometimes, the first time I’ve heard about a claim is when an attorney I’ve dealt with in the past is professional enough to call me and say, ‘Your doctor was served, and no one answered. You might be in default,’” Stelly recalls.
Some insurance policies and employment contracts require immediate notification of a claim.
“Failure to do so could put them in jeopardy of losing their insurance coverage,” Stelly says. “It could also put them in breach of contract, putting their personal assets at risk.”
Stelly knows of EPs who, immediately upon learning of a complaint against them, begin searching for the patient’s subsequent medical records or contacting other providers who treated the patient. This puts them at risk for violating HIPAA.
“They are talking with other providers about the patient and it’s not for treatment purposes, billing purposes, or any other exception under the HIPAA privacy rule,” Stelly says.
EPs eager to assist in their defense sometimes offer, “I can get the patient’s records” or “I can talk to Dr. Smith and find out what this person really said.”
“Our natural gut inclination is to find out what happened,” Stelly notes. “But you may be dealing with a more compounded problem down the road.”
Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor); Stacey Kusterbeck (Contributing Editor); Jonathan Springston (Associate Managing Editor); Kay Ball, RN, PhD, CNOR, FAAN, (Nurse Planner); and Shelly Morrow Mark (Executive Editor).