The plaintiff in one malpractice claim had been seen in the ED for injuries he sustained while fleeing the scene of a crime. However, it was unclear whether a jury would ever get to hear about the patient’s criminal conduct.

“The EP believed that the jury would certainly rule against the patient if they knew how he was injured,” says Keith C. Volpi, JD, an attorney at Kansas City-based Polsinelli who defended the EP.

The parties settled the case before the admissibility issue could be decided, but it raised a question ED defendants ask commonly: Can an ED patient’s pre-treatment conduct be used as a viable defense strategy?

“The short answer in most jurisdictions is: It depends,” Volpi explains. There are two types of pre-treatment conduct that defense attorneys and defendant EPs want a jury to know:

  • Pre-treatment conduct by a patient that is medically relevant.

Did a patient wait too long to go to the ED, or fail to follow a provider’s instructions? The general rule is that medically relevant pre-treatment conduct is admissible.

“I recently defended a case that provides a great example of this,” Volpi says.

The plaintiff presented with a knee dislocation. The lawsuit alleged that too much time passed before the EP ordered a CT angiogram to diagnose an occluded popliteal artery, and that the delay resulted in acute compartment syndrome.

“However, we learned that nearly three hours passed between the injury and the patient’s presentation in the ED,” Volpi notes. That pre-treatment conduct was “absolutely, directly” medically relevant to the patient’s claims, Volpi says.

In this case, the patient’s delayed presentation for medical treatment was acutely important.

“As anticipated, evidence of the patient’s delayed presentation was admissible and heard by the jury,” Volpi recalls. The defense got this message across ... both during the opening statement and also through expert testimony. “Our theme was that the patient, not the EP, made this a time-sensitive case,” Volpi says. “We told the jury during opening that the patient took his sweet time before going to the hospital.”

The patient admitted on the stand that he decided to wait to see if symptoms improved before going to the ED.

“Our experts testified that the outcome would have been much different if the EP had another few hours to work with,” Volpi adds.

  • A patient’s pre-treatment conduct that is only tangentially medically relevant.

The general rule is that this type of “socially relevant” pre-treatment conduct is inadmissible. “I see this most commonly in my practice when patients present in the ED intoxicated and then file a claim for negligent treatment by the EP,” Volpi says.

For obvious reasons, ED defendants want the jury to know the patient was drunk and belligerent. But unless the patient’s intoxication is medically relevant to the alleged negligence, it often is inadmissible.

“In other words, pre-treatment conduct is inadmissible for the sole purpose of ‘smearing’ the patient,” Volpi explains. In a recent decision in Maryland, a trial court determined that the amount of time that passed before a patient presented for treatment after experiencing severe abdominal pain was inadmissible.

The lawsuit alleged that the patient’s common bile duct was injured during a cholecystectomy.1 The court held that the patient’s pre-treatment conduct is irrelevant in determining whether the physician is liable for violating the standard of care.

“The amount of time during which the patient experienced abdominal pain was not medically relevant to the performance of the surgical procedure,” Volpi notes.

Contributory negligence is still a viable defense in Maryland when it comes to the plaintiff’s conduct after the relevant care and treatment, says Ronald V. Miller, Jr., JD, an attorney at Baltimore-based Miller & Zois.

“But the door is now closed, assuming the court of appeals does not speak to this, on the plaintiff’s conduct before the alleged negligence,” Miller says.


  1. Joao Barbosa, et ux. v. Tanisha Osbourne, No. 1258, September Term, 2015. Filed April 26, 2018.