It’s never easy for an EP to listen to an expert witness testify that their care was negligent, but it’s harder to take coming from someone who hasn’t worked in an ED in many years — or ever.
“It’s completely unfair to let anybody talk about the standard of care in emergency medicine except an emergency physician. They wouldn’t let me get on the stand and talk about the standard of care in neurosurgery or cardiology,” says Andy Walker, MD, FAAEM, a Signal Mountain, TN-based EP who offers legal consulting services.
Each state has instituted its own rules concerning who is admissible as an expert in a particular case. “In my state, Tennessee, we have no relevant standards as to who can testify against an EP,” Walker notes. “If we had a fair system, then the only people who could testify as to the standard of care in emergency medicine would be emergency physicians.”
Physicians from a variety of other specialties are found on the witness stand commonly, though, freely offering their opinions on the care provided in the ED. “In almost every case I’ve been involved in, there is someone from another specialty testifying that the EP violated the standard of care,” Walker says.
Cardiologists frequently testify in missed myocardial infarction (MI) cases. “Cardiologists know how to take care of MI patients. The problem is that’s not what they’re testifying about,” Walker says.
The expert in an ED case testifies about the standard of care for how to work up patients with undifferentiated chest pain, whereas cardiologists see patients who have been worked up already. “Cardiologists have no idea of the number of chest pain patients we send home,” Walker explains. “It’s basically a signal-to-noise problem, like a lot of missed diagnoses are.”
An EP might see 100 patients with chest pain before identifying someone who actually has an MI. “The background noise is so huge, sometimes it’s hard to pick out that signal,” Walker says. “Cardiologists are wholly ignorant of that. They don’t even think about that problem.”
The defense’s job is to explain that the issue at hand is not how to take care of a heart attack patient. Rather, it’s how to work up a patient with undifferentiated chest pain. The cardiologist’s typical testimony goes something like this: The EP missed the heart attack, he or she should have diagnosed it, and the EP violated the standard of care by sending the patient home. “That is completely unfair, because they know in retrospect that it was a heart attack,” Walker says. “Cardiologists do not see the undifferentiated chest pain patient.”
The same problem occurs when neurologists testify in missed stroke ED cases, or orthopedists testify in missed epidural abscess cases. “They see a tiny sliver of our patients, the ones we have preselected them to see,” Walker says. “But they get up on the witness stand and claim they’re qualified to pass judgment on our decision-making.”
EDs see a handful of patients with back pain caused by something that actually threatens the spinal cord. “If you see them early enough, before they have a neurologic deficit, you’re not going to diagnose it,” Walker says.
A plaintiff expert likely will counter that the EP should have diagnosed the condition with neurological studies. The problem is that such tests probably weren’t indicated at the time of the ED visit.
“Unless the patient has a neurological deficit, there is no justification for imaging, which means all these epidural abscesses are going to get missed until the patient starts to get weakness in the legs,” Walker explains. The defense expert has to convey an important point, that even though there was a bad outcome, the patient received proper medical care in the ED.
It’s possible that an epidural abscess patient will be sent home because it’s too early to identify the condition at the time of the ED visit, and end up experiencing a bad outcome. “We get sued over that, but missing that is not malpractice, it’s unavoidable,” Walker adds.
Faced with a specialist opining on ED care, the defense team’s only recourse is to put their expert on the stand to explain why the plaintiff’s expert should be disregarded. “Under cross-examination, the defense attorney can say, ‘You’ve never worked in an ED, have you?’” Walker explains. The plaintiff expert likely is well-prepared for this line of questioning. The expert might respond that he or she worked in an ED while in training, goes to the ED frequently to admit patients who experience heart attacks, and routinely accepts transfers from EPs on the phone.
“They have tangential contact with emergency medicine, but they are not in the trenches and making decisions,” Walker underscores.
When Walker takes the stand as a defense expert, he looks forward to the defense attorney’s question, “What do you think about the other expert saying that the emergency physician violated the standard of care?”
“That gives me a chance to explain to the jury that the issue is what it’s like to be in the ED with the chest pain patient in real time, making decisions with the data you had on hand,” he offers.
The legal question is not whether the EP’s decision proved to be correct. It’s whether the EP behaved reasonably, based on what he or she knew at the time.
“If the defense expert can get the jury to focus on that, and understand it, they’ve got a good chance of winning the case,” Walker adds.
In Massachusetts, the applicable standard of care is limited to the standard of care for the specific specialty of the defendant provider. “The jury is instructed specifically that the standard of care pertains to the defendant provider’s specialty,” says Megan Kures, JD, a senior attorney in the Boston office of Hamel Marcin Dunn Reardon & Shea. In a malpractice claim against an EP, the jury would be instructed explicitly that the defendant is to be held to the standard of care of average qualified physicians practicing in the area of emergency medicine. Jurors are instructed further to look beyond what one specific EP would have done, and to consider the community of average qualified EPs.
“We do occasionally see plaintiff’s counsel call an expert outside of the specific area of the defendant’s specialty,” Kures notes. “This is typically something we attack on cross-examination.”
Faced with a situation in which the plaintiff seeks to hold the EP to a different specialty’s standard of care, defense counsel makes a point of educating the jury on the differences between the specialties, as well as their education, training, and experience.
“The defense team points out to the jury that an EP does not have the same training and expertise as a spine surgeon, for instance,” Kures adds.
Many states have created statutes or rules of evidence that limit the ability of a plaintiff’s expert to qualify to testify on the standard of care for an EP if he or she does not practice or teach in the field of emergency medicine.
“Thankfully, in most cases, it is fairly clear that an EP will not be held to the same standard that applies to a cardiologist or neurologist,” says Ryan M. Shuirman, JD, an attorney at Yates, McLamb & Weyher in Raleigh, NC. However, in some cases, a non-EP is permitted to testify on the standard of care applicable to an EP — if both the non-EP and the EP perform the same procedure that is at issue in the case.
For instance, both cardiologists and EPs obtain and interpret ECGs. If a plaintiff alleges that an EP failed to properly interpret an ECG, the plaintiff arguably can rely on a cardiologist to testify how the EP misinterpreted the study.
“Such a strategy is vulnerable, however, to the defense putting on evidence from an EP expert who will distinguish the training of an EP and a cardiologist,” Shuirman warns. The defense informs the jury that the plaintiff is unfairly attempting to hold the EP to an arguably higher standard.
Many states have instituted pre-suit certification requirements mandating that a plaintiff attest that the medical care at issue has been reviewed by someone reasonably expected to qualify as an expert witness against the defendant, and who has opined that the care provided by the defendant was substandard.
“We had a recent case in which a plaintiff sued an EP for failing to diagnose appendicitis, and relied on a general surgeon to review the case pre-suit,” Shuirman recalls. On a motion to dismiss, the defense maintained that the plaintiff could not have reasonably expected a general surgeon to qualify to testify on the standard of care applicable to the defendant EP because they practice different specialties.
The plaintiff countered that both EPs and general surgeons are called on to diagnose appendicitis. The plaintiff reasonably expected the general surgeon to qualify to testify on the standard of care because the surgeon and the EP perform the same procedure at issue in the case.
“The judge agreed with our position that it would be unfair to permit a plaintiff to go forward with a claim against an EP premised on the opinions of a surgeon who typically operates after the EP has made a diagnosis,” Shuirman says. The judge dismissed the plaintiff’s case.
Many juries will understand the inherent unfairness of holding an EP to a “higher” standard, and will reward a defendant who has support from EP experts.
“In some ways, then, plaintiffs almost do the defense a favor when they rely on experts who do not practice emergency medicine — if we can find good support from qualified EPs who can help us defend the case,” Shuirman adds.
- Megan Kures, JD, Senior Attorney, Hamel Marcin Dunn Reardon & Shea, Boston. Phone: (617) 482-0007. Email: MKures@hmdrslaw.com.
- Ryan M. Shuirman, JD, Yates, McLamb & Weyher, Raleigh, NC. Phone: (919) 719-6036. Email: firstname.lastname@example.org.
- Andy Walker, MD, FAAEM, Signal Mountain, TN. Email: email@example.com.