Often, plaintiff experts are viewed as people who are out to get the EP. In reality, most of the time they find no evidence of malpractice.
“When a plaintiff attorney hires an expert to review the case, the expert often finds that there was no negligence,” says Ken Zafren, MD, FAAEM, FACEP, clinical professor of emergency medicine at Stanford (CA) University Medical Center.
Good documentation counters allegations that the standard of care was not met. In this way, says Zafren, “the plaintiff’s expert can save a treating physician from an unnecessary lawsuit.” The process starts when the plaintiff attorney contacts the expert and gives a brief description of the case. The plaintiff checks to see if the expert has any conflicts, such as knowing any of the parties in the case. Zafren turned down one case because he knew the medical director of the EMS service sued. “Most experts will not take a local plaintiff’s case,” adds Zafren, who says he will not take a plaintiff’s case in Alaska or northern California because he works at referral hospitals in both places.
Next, the expert sends the attorney a CV and fee schedule. Once the expert is retained, the attorney sends the expert the medical records and any other relevant documents. “In some cases, the material may be limited,” Zafren says. In one case, an attorney retained an emergency cardiology expert, but sent only the one ECG at issue in the case. This way, the expert would not be biased about the ultimate diagnosis.
Some plaintiff’s experts try to limit the materials sent to the expert to save money by curbing the time the expert spends reviewing the case. “I have also seen a few instances of experts receiving incomplete materials in order to bias them by suppressing materials not favorable to the attorney’s theory of the case,” Zafren reports.
Most reputable experts insist on receiving all the relevant records and documents. “There are often many additional records, such as photographs that are not part of the medical record and policies and procedures of the hospital,” Zafren notes.
From there, the expert reviews the records and discusses the case with the attorney. “The expert does not write a report unless requested to do so by the attorney,” says Zafren, adding that in most states, a report is discoverable (but the phone conversation with the attorney is not). “Usually, if the expert writes a report, the expert reads the draft to the attorney on the phone and edits the draft in consultation with the attorney.”
Since drafts are discoverable, the expert usually writes the report in a Word file, modifies it in consultation with the attorney, and saves the final revision as a PDF. “That way, there are no drafts except the final version of the Word file,” Zafren says.
Usually, expert reviews are sought shortly after a plaintiff’s attorney accepts a case. “There is typically a conversation with the expert in which the lawyer or paralegal describes the basic facts of the case,” says Laura Pimentel, MD, a clinical associate professor in the department of emergency medicine at University of Maryland School of Medicine.
Experts receive a huge volume of information. Much of it is repetitive: pages of lab results or other documents of minimal relevance to the ED visit. “I prioritize review of the ED visit or visits, including physician notes and orders, nursing notes, consultant notes, labs, ECGs, and imaging studies,” Pimentel reports.
Next, she creates a timeline of the ED care. Any discharge instructions given to the patient are reviewed closely. “If the patient was admitted, the hospital course must be carefully reviewed,” Pimentel says.
Any outpatient visits around the time of the ED visit also are important to review. “Experts should systematically review the care to render an opinion on whether or not the standard of care was met,” Pimentel says.
Questions experts need to answer include (but are not limited to):
- Was there timely recognition of the clinical situation?
- Were appropriate diagnostic tests ordered in a timely fashion?
- Was there appropriate monitoring of the patient including timely recognition of deterioration?
- Were proper consultations initiated in a timely fashion?
- Was medical decision-making and reassessment thoroughly documented?
If the expert believes the standard of care was met, the attorney may decide right away not to pursue the case. Sometimes, the attorney asks another expert for an opinion. “This is common if specialty services are a prominent part of the case,” Pimentel observes.
If Zafren’s opinion is there was a bad outcome despite adequate (or even stellar) care, he informs the attorney. “That usually ends the case. Attorneys are seldom surprised when I tell them that even though the outcome was bad, the care was good,” Zafren says.
Some cases are not so black and white. Frequently, attorneys identify multiple areas where they suspect care might have been substandard, delay in diagnosis or improper treatment among them. “Once we have gone through all of these, if there was no negligence, most attorneys won’t file a case,” Zafren says. “They have no desire to expend time and considerable money to bring a case they can’t win.”
To file a medical malpractice lawsuit, plaintiffs must show that an expert physician was consulted to substantiate the allegations, says Anna Berent, JD, claims counsel for Houston-based Western Litigation. States like New York require a simple verification from plaintiff’s counsel called “certificate of merit.”
“It does not require that plaintiff’s counsel reveal the expert’s name specialty or what types of criticism said expert had,” Berent notes.
However, other states are far more stringent. Some require an affidavit from the expert along with the notice to commence a medical malpractice action. This affidavit must contain the expert’s name and specialty, which should be in the same field as the named defendant physician. For example, a radiologist cannot provide an affidavit with opinions on what an EP may have done incorrectly.
“Naturally, in states where disclosure of expert identity and opinions is not required, plaintiff’s attorneys tend to go to generalist physicians for nonspecific discussions,” Berent says.
Most plaintiff physician experts are diligent in their reviews, viewing the task as an interesting side job. “However, there are definitely a number of hired guns and go-to’s that plaintiff firms use,” Berent says.
For instance, in obstetrics/birth injury cases of catastrophic damages but dubious liability, defense lawyers have come to expect to see one of a handful of pediatric neurology and general obstetrician experts who typically testify in such cases. “The extent and the depth of a plaintiff’s expert’s initial review of the case often depends on the questions posed to them,” Berent says.
Thus, the caliber of plaintiff’s counsel’s experience in the field of medical malpractice matters a great deal. “Given the contingency fee-based arrangement for medical malpractice cases, it behooves plaintiff’s attorneys to have parity in expert specialty to the defendant’s specialty,” Berent says. It is in both the attorney’s and the patient’s best interest for the expert to play devil’s advocate to ensure the case is meritorious. “Occasionally, where appropriate, plaintiff’s counsel can seek a blind review of the case,” Berent says.
This approach is used frequently by both sides in radiology cases. Berent has found blind reviews helpful in many ED cases. “It eliminates any potential of Monday morning quarterbacking, since the expert does not know the outcome, ultimate diagnosis, or damages.”