By meeting with plaintiffs and attorneys, Schumacher Clinical Partners reduces protracted ED malpractice litigation. Claims against EPs are dropped occasionally after the care is fully explained; in other cases, the settlement process is expedited.
- EPs discuss their medical decision-making.
- Defense attorneys explain why a case is defensible.
- Plaintiff attorneys share information on the strength of their case.
In typical malpractice litigation, the first chance EP defendants get to explain the care they provided comes during their deposition — and they know full well that every word can be used against them in court.
“By the time that comes out, everyone is so invested in the litigation — and the patient is so angry at being ignored — that any chance of resolving the case is significantly diminished,” says Brandon K. Stelly, vice president of enterprise risk management and internal counsel at Schumacher Clinical Partners, a Lafayette, LA-based emergency medicine group.
Schumacher Clinical Partners routinely meets with patients, family, and attorneys as early as possible when a malpractice claim is filed. “When we get a claim we believe is defensible — and even for some that are less defensible — we immediately engage plaintiff counsel in discussion,” Stelly explains.
The group makes a simple, but surprising, offer to the opposing counsel: Let’s all sit and talk openly about the care that was provided in the ED. “We’re a little unorthodox in that approach,” Stelly notes. “Litigants in general tend to hide behind their attorneys and use them as mouthpieces.”
Few plaintiff attorneys refuse the offer to sit and talk. “When we sense trepidation, we will often offer a list of names of other plaintiff attorneys in the state, so that the uneasy attorney can contact them to confirm our intentions are genuine,” Stelly says.
Talking about the strengths and weaknesses of the malpractice claim is often eye-opening for both sides. “That front end conversation at least has the effect of letting everyone fine-tune their cases, to take some age off of the litigation process,” Stelly says.
Protracted litigation leads to skyrocketing costs on both sides. “What you could have settled for $10,000 back on day 21 is now going to cost you $110,000 to settle on day 601, because everybody’s invested time and money in the case,” Stelly says. Here are some of the benefits resulting from the group’s meetings:
- The group is able to explain why the ED care was appropriate.
“We do this in a respectful manner because somebody is doing this because they are upset,” Stelly notes. In some cases, there is a good reason why the EP was unable to make the correct diagnosis at the time of the ED visit, or why a particular treatment was not appropriate at that point in time.
“Many claims are filed because of a lack of understanding. Those tend to be the ones that people deem to be frivolous,” Stelly says.
At times, a candid discussion about the medicine and the EP’s thought process has resulted in a voluntary dismissal of the claim. “But more importantly, and much more frequently, there are many instances when it has resulted in a claim not being filed,” Stelly adds.
There always will be claims in which there is a genuine difference of opinion. In those cases, Stelly says, “we very politely debate the medicine, and whether it was reasonable or unreasonable.”
The plaintiff sometimes realizes that no negligence occurred on the part of the EP, and agrees not to oppose a summary judgment filed by the defense attorney. “Sometimes, a guy who wanted a million dollars will suddenly take a cost of defense settlement or cost reimbursement,” Stelly says.
An outright voluntary dismissal of the claim against the EP is harder to come by. “But if we have that conversation early on, and explain why the case is so defensible, every once in a while it results in the case going away,” Stelly offers.
- The group is able to correct misconceptions held by the plaintiff attorney.
On several occasions, the plaintiff attorney didn’t realize he or she had to meet a “gross negligence” standard to prevail, because of newly enacted tort reform legislation in their state. “It affords us the opportunity to say, ‘Hey, did you know this is what you have to prove?’” Stelly says. At one such meeting, the patient’s attorney said it would take $6 million to settle the case — in a state that capped damages at $500,000.
Sometimes, factors that have nothing to do with the facts of a particular case. “You shouldn’t be scared of any given courtroom,” Stelly notes. “But there are certainly jurisdictions that are much more dangerous to try a case as a defendant.” Thus, the venue factors into decision-making.
- The plaintiff attorney is able to explain why he or she believes there is a strong case against the EP.
If an ED claim is a strong candidate for settlement, it’s better if both parties know sooner rather than later. “They will come back and say, ‘But did you realize this?’ We sometimes are given a piece of new information that helps us all, including the EP, evaluate just how much risk we have,” Stelly says.
- Brandon K. Stelly, Vice President, Enterprise Risk Management & Internal Counsel, Schumacher Clinical Partners, Lafayette, LA. Phone: (337) 609-1129. Fax: (337) 262-9716. Email: email@example.com.