EXECUTIVE SUMMARY

Increasingly, plaintiff attorneys are requesting EP defendants’ texts and cellphone calls during discovery.

At deposition, EPs face questions about whether they were sending texts during their shift;

Asking colleagues a question via text could bring them into the litigation;

EPs consulting with radiologists by text can be legally problematic for both parties;

Humorous texts can appear inappropriate in court.


It may seem like no big deal to text a colleague about a tricky ED case. However, that message could become a major issue during malpractice litigation.

“That little cellphone in your pocket can be very helpful in caring for a patient but very harmful in a lawsuit. It’s not something to be taken lightly,” says Jesse K. Broocker, JD, an attorney at Weathington McGrew in Atlanta.

Even just answering a text while off shift carries important legal implications for EPs. One recent malpractice case involved a patient who underwent a total knee replacement. The next morning, the physician rounding learned that the patient had lost feeling in his foot. That physician texted a colleague about the situation.

“My doctor had no obligation to respond to that text message. He was not on call. It was purely a favor to his colleague — and, really, the patient — that he engaged in decision-making,” Broocker says. The physician texted back, “Wow, that’s weird. You might want to do a nerve conduction study.” Shortly after, the first physician texted back, “The patient can move his foot again, and is fine.”

“It ended up [the patient] had a popliteal artery injury, which caused intermittent symptoms,” Brooker says, noting the patient sued the doctor who had rounded. “But, in that doctor’s deposition, he whipped out these text messages.”

The plaintiff attorney added the doctor who had responded to the text to the lawsuit, arguing that the physician should have realized the seriousness of the situation and taken appropriate action. “He was probably out on the golf course just trying to be friendly and ended up getting dragged into the case,” Broocker suggests.

EPs often want to know: “Are you telling me that if someone texts me with one question, and I answer it, that I can be brought into a lawsuit?” It’s certainly possible, according to Broocker: “There are no hard and fast rules. But you may be brought in. You just have to be careful.”

Even texts and calls of a nonclinical nature cause problems during litigation. EP clients sometimes tell Broocker, “I’m on shift right now.” He instructs the doctor to end the call immediately. “If a bad outcome happens during the shift, the plaintiff attorney can get ahold of the phone records,” Broocker says. The plaintiff attorney will be able to say, “You were on the phone with your lawyer when you should have been seeing patients.”

The same goes for sending text messages during an ED shift. The question “Were you sending text messages during your shift?” is common in depositions. Broocker advises his EP clients to turn off their phones while working a shift. “They can get [cellphone records] now,” Brooker notes. “I’m surprised, quite frankly, that they don’t ask for it in more ER cases.”

So-called “curbside” consults performed informally in hallways or over the phone are nothing new in ED litigation. “For an ER doctor, a consult can be massive insulation in malpractice. If you get the right consult for an issue, that’s a very defensible case if that consultant gives you the wrong advice,” Broocker says.

In a typical case, the EP pages a cardiologist for input on an ECG read. The cardiologist thinks it is just an informal exchange, but the EP documents it as a consult. “I’ve had cases where there was miscommunication on the level of the consultant’s involvement,” Broocker says.

What is new is that curbside consults are happening with text messages. The EP might text a radiologist, “Let me know what you think” about an X-ray. The radiologist texts back, “It looks normal.” The EP thinks the radiologist has reviewed the X-ray in its entirety and has cleared it. The radiologist’s text was referring to something being looked for specifically, such as checking to see that a tube was placed correctly. This miscommunication can pit one defendant against another.

Despite the potential legal risks, it probably is unrealistic to stop curbside consults altogether. “Curbsides are quicker, and consultants will be more responsive,” Brooker says.

The key is for all parties involved to realize that anything they say on a cellphone call or text is potentially admissible in the event of malpractice litigation. “I can’t promise that anything is not coming in. Whether or not a text ends up being admissible is the judge’s call,” Broocker cautions.

In one court of appeals case, texts exchanged between two physicians became an issue. The messages included disparaging remarks about a consultant, which had no relevance to the facts at issue in the malpractice case. Nonetheless, the texts were ruled admissible.1

It is safe to assume plaintiff attorneys will try to obtain any texts sent during the EP defendant’s shift to use against the EP in some fashion. “It behooves them to muddy up the case,” Broocker adds.

In a medical malpractice case, any text about the patient’s condition, treatment decisions, or prognosis likely is admissible as a statement made by the defendant physician, according to Ryan M. Shuirman, JD, an attorney at Yates, McLamb & Weyher in Raleigh, NC. Similarly, the content of a phone call, particularly statements made by a defendant, likely will be admissible as admissions. “Statements of nonparties in such a phone conversation may be admissible if offered to prove why an EP took a certain action based on information conveyed by a colleague,” Shuirman explains.

It has become more common for plaintiffs to request the phone records of a physician. They are looking for evidence of outgoing and incoming phone calls and texts. “The rationale for requesting this information is essentially the same as the audit trail,” Shuirman says. These texts and calls help establish a timeline. Such messages also identify individuals who might have knowledge beyond what is contained in the medical record.

“Text messages provide more information than a call log,” Shuirman says. Texts spell out exactly the information that was conveyed and, perhaps, the reaction of the recipient to the information.

Discovery in litigation often occurs years after the event. Memories of conversations can fade over time. Thus, says Shuirman, two physicians who communicate verbally via phone have plausible deniability when asked for details of the conversation at deposition. “With a text message, however, there is no denying the information conveyed or the decisions made with knowledge of that information,” Shuirman says.

In a recent malpractice case, the patient experienced life-threatening complications following a heart catheterization. The cardiology team consisted of the diagnostic cardiologist, the interventionalist, and a physician assistant who managed the patient on the floor. While the interventionalist rounded on the patient in the ICU, he was on call at another facility later in the day. Thus, he was not going to be around to receive updates on the patient’s status.

“In what seemed to be compassionate inquiries into the patient’s condition, the interventionalist sent text messages to the various consultants who were asked to assist,” Shuirman reports.

The interventionalist jokingly wrote in a text that the consultant should give the patient a “two-for-one” discount on the various services he was receiving, or perhaps “throw in” another treatment for free. “The text was received with the levity intended, and the consultant acknowledged the joke,” Shuirman notes.

In discovery, the plaintiff asked the interventionalist to produce all texts that referenced the patient. The interventionalist had to explain the appropriateness of his levity at a time when the patient’s prognosis was quite guarded and severe neurologic injury likely had occurred.

“Knowing that a text message might ultimately be read by a jury should be incentive enough for a physician to think twice about the language used and tone of any message,” Shuirman advises. EPs should recognize that their texts may be treated no differently than notes in a chart that contemporaneously detail facts.

“In some ways, text messages can be even more telling, in that they include a date and time stamp,” Shuirman offers. “Every message alerts the reader to what was known at what particular time.”

REFERENCE

  1. Pham v. Black, 2018 Ga. App. LEXIS 567, *4 (Oct. 10, 2018).