Conflicting deposition testimony bolsters any medical malpractice case. “The classic situation is where the emergency physician says, ‘The nurses didn’t tell me,’ and the nurses say, ‘We’re not doctors, and we don’t make diagnoses.’ It does put the two of them at odds against each other,” says James B. Edwards, JD, a Stafford, TX-based medical malpractice defense attorney.

Communication gaps between EPs and ED nurses often become a central issue during malpractice litigation. “[EMRs] are now a major source of this risk,” says Marc E. Levsky, MD, vice chair of The Mutual Risk Retention Group and an EP at Marin General Hospital in Greenbrae, CA. Levsky has seen these issues complicate the ED defense:

  • Nurses do not document their findings contemporaneously, so an important piece of information was not available at the time of the ED visit;
  • EPs have to click through multiple screens to find nursing documentation, so the documentation is never reviewed;
  • EMRs do not notify EPs that nursing documentation has been created.

“If the physician is not aware of the documentation or cannot readily see it, he or she cannot address abnormal findings,” Levsky says. A visual of exactly what was on the EMR screen can help the defense in such cases. “It shows the jury exactly what the physician was seeing at the time,” Levsky adds.

Conflict over what, if anything, nurses communicated to the EP works to the plaintiff’s benefit.

“I’ve seen cases where the emergency physician was as mad as could be,” Edwards recalls. “Sometimes, there is just no way to have a unified defense.”

Plaintiff attorneys will ask the EP to opine on whether a “prudent” or “reasonable” nurse would have acted as similarly as the defendant nurse. The goal is to prove the ED nurse breached the standard of care, which means the hospital can be held liable.

“It is generally recommended that defendants not comment on the actions of codefendants,” Levsky offers.

Testimony by the EP such as “I have no criticism of the care provided. I think the nurses provided good care” can be helpful in this regard. “We can then try to have the hospital side echo the same kind of position with respect to the emergency physician,” Edwards explains.

Speculating about a codefendant’s motivation or what a codefendant should have done can backfire quickly. Edwards offers this less inflammatory response:

Plaintiff attorney: Do you believe the nurses should have alerted you sooner about the elevated heart rate?

EP defendant: These are good nurses. I have had good experiences with them in the past. I can’t tell you what the patient’s condition was at that time because I wasn’t present.

Likewise, if the EP is asked why nurses did not call until a specific time, resist the temptation to speculate. A well-meaning EP might try to defend the nurses by pointing out the department was slammed with high-acuity patients at the time. Or, the EP might see it as an opportunity to deflect blame by suggesting the nurse seemed very distracted that shift. Either response is problematic.

Instead, Edwards suggests responding: “You’d have to ask the nurses why they didn’t call until 11:00” or “You’ll have to take that up with the nurse.”

The same holds true for the testimony of ED nurses. It is easy to answer affirmatively to a question such as “Don’t you think a reasonable emergency physician should have acted when the patient’s sodium levels were 700 and rising?”

Instead, the ED nurse can refuse to comment on what is “reasonable” for an EP in this scenario, Edwards notes.

Toning down the nurse’s testimony can help promote a unified defense. It also can go wrong if the EP ends up settling out of the case.

“The hospital is then at a disadvantage because they have softened their defense in the deposition,” Edwards says.

The EP is out of the case but presumably still is a fact witness. Thus, the EP can help the hospital by testifying, “This was my decision. I think it was the right decision, but it definitely wasn’t the nurse’s decision.”

The dismissed EP can help the defendant hospital to demonstrate that the bad outcome was not the nurse’s fault; therefore, the hospital should not be held liable. “This is one reason for the plaintiff attorney to keep the emergency physician in the case,” Edwards adds.