‘Divide and Conquer’ Is Plaintiff’s Strategy With ED Co-defendants
When both ED nurses and EPs are named in a malpractice suit, a unified defense is the goal. “Plaintiffs’ attorneys love to set up finger-pointing situations by naming as many individual defendants as possible,” explains Dan Groszkruger, principal of Solana Beach, CA-based rskmgmt.inc.
The plaintiff’s side intentionally casts a “wide net” when it comes to named defendants. The strategy is to purposely include clinicians who had little or nothing to do with diagnosis or treatment. Individuals whose names merely appeared in the medical records, such as a specialty consultant, often feel unfairly singled out. “Their natural defensive reactions prompt finger-pointing at other, more-involved clinicians,” Groszkruger notes.
If one defendant blames another, the overall defense strategy usually is weakened. “Almost always, only the plaintiff will reap major benefit from a resulting divide-and-conquer attitude among named defendants,” Groszkruger says. To counter this, the defense team generally adopts a “circle the wagons” tactic. “The challenge is to persuade each defendant of the wisdom of this approach,” Groszkruger says.
Medication errors are a common example in ED cases. The patient’s overdose or adverse reaction may have been caused by the EP’s rushed decision-making when deciding to order the medication, or in determining the appropriate dosage for the patient. Even so, the EP’s initial reaction often is to blame the ED nurse who gave the drug. “The prescriber has a natural tendency to suspect that the individual who actually prepared or administered the drug was careless and made a mistake causing harm,” Groszkruger explains.
The defense attorney’s job is to caution providers to resist the urge to defend themselves by placing blame on others. “Only the plaintiff will benefit in the end,” Groszkruger adds.
If the named EP and ED nurse are insured by the same policy, “the risk of finger-pointing will be top of mind,” Groszkruger says. “The defense attorney will counsel them that such actions tend to work only to the plaintiff’s benefit.”
If EPs are independent contractors, not employees covered by the hospital’s insurance, “the defense strategy will require putting all defense attorneys in touch as early as possible,” Groszkruger says. Ideally, hospital risk managers will do this before attorneys are able to secure witness statements.
“Clever plaintiffs’ attorneys know that if they can secure a statement at an early stage, named individuals will be more easily persuaded that they can protect themselves by blaming others,” Groszkruger says.
By the time formal depositions are scheduled, the circumstances that prompt defendants to blame one another already are in place. “Plaintiff attorneys who detect a tendency to finger point will attempt to strengthen such motivation by strategic bargaining,” Groszkruger says.
For example, attorneys may assure a potentially favorable witness that he or she is not their target — in exchange for testimony implicating another provider. “Defense attorneys typically instruct their respective clients not to respond to questions that seek opinion testimony that is outside their expertise,” Groszkruger says.
For instance, EPs are not qualified to assess the nursing standard of care, just as ED nurses are not qualified to offer opinions about the standard of care for EPs. The defense attorney should object to the form of the question on the grounds that it calls for expert opinion testimony from a non-expert witness, or that the question addresses subject matter that is beyond the witness’s expertise, and instruct the witness not to answer.
“Even if the defense attorney fails to object, the witness may ask for clarification,” Groszkruger says. For example, an EP under deposition might respond by saying “Are you asking me, a physician, what an ED nurse should do under these circumstances?” The EP can decline to answer if the question is confusing or not easily understood. Likewise, an ED nurse may be asked whether available diagnostic tests that in retrospect could have produced helpful information were overlooked by the EP. “But a nurse’s 20/20 hindsight cannot substitute for a physician’s expertise that guided his or her choice of diagnostic testing based on the patient’s presentation,” Groszkruger says.
The prescribing EP might be asked whether a nurse was negligent for delaying administration of an injection for over an hour while caring for another patient. “The ordering physician will generally assume that the medication was administered promptly — within a few minutes of receiving the order,” Groszkruger says.
However, the EP should resist speculating as to the ED nurse’s negligence. The EP may be unaware of the emergent needs of other ED patients for whom the nurse was responsible, which delayed administration of the medication. “In any event, the physician is unlikely to know whether delayed administration, under these specific circumstances, violated the nursing standard of care,” Groszkruger adds.
- Dan Groszkruger, Principal, rskmgmt.inc, Solana Beach, CA. Phone: (619) 507-0257. Email: [email protected].
When both ED nurses and EPs are named in a malpractice suit, a unified defense is the goal.
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