To prevail in a malpractice claim, plaintiffs must meet four specific criteria: a patient/physician relationship existed, there was a breach of standard of care, negligence occurred while the practitioner was acting within the scope of employment, and negligence was a proximate cause of the patient’s injury.

The first three criteria are straightforward in most ED cases. Gary Mims, JD, cannot think of a case in which there was no patient-physician relationship, or a case in which one party claimed such a relationship did not exist.

“This would be a dangerous approach for a defendant in many states like Virginia,” says Mims, managing partner at Fairfax, VA-based Frei, Mims and Perushek. This is because state damage caps protect physicians from large judgments. “If a defendant successfully claimed there was no patient-physician relationship, he would lose protection of the cap,” Mims adds.

Generally, plaintiff attorneys find some aspect of care that was arguably beneath the standard of care. Likewise, they can show the ED provider was acting in the scope of his or her employment. However, causation “is often a difficult problem,” Mims says.

For example, in missed stroke cases, the EP did not cause the stroke, but rather failed to diagnose it. “If the ED defense can prove the injury would have happened regardless of the ED physician’s treatment, even if the treatment was negligent, the ED physician would get off because the negligence would not be a proximate cause of the injury,” Mims explains.

The plaintiff may struggle to prove the failure to diagnose caused the bad outcome (e.g., permanent brain injury). First, the plaintiff has to prove the patient visited the ED in time to meet criteria for tPA and that tPA likely would have changed the outcome. “I have rejected many cases where the patient arrived at the ED with signs of stroke and tPA wasn’t given. In those cases, there were notes showing that tPA was considered and why it was ruled out,” Mims reports.

Causation often comes up in ED malpractice claims alleging missed or delayed diagnosis, says Sean P. Byrne, JD, an attorney in the Richmond, VA, office of Hancock, Daniel & Johnson. For a plaintiff to prevail, they have to prove a breach of the standard of care that proximately caused damages. “With delayed diagnosis cases, the damages claimed can take many forms,” Byrne says.

It can be a worsened condition, death, a prolonged hospitalization, or less-than-full recovery. “At times, the impact of the diagnostic delay can be more difficult to define,” Byrne notes.

The plaintiff may allege the negligence reduced or eliminated the odds of a positive outcome for the patient. Under this theory, the plaintiff has to prove the provider’s negligence took away the possibility of a better outcome for the patient. “Valuing this damage is challenging,” Byrne observes.

For example, in a delayed diagnosis wrongful death case, the plaintiff might claim the patient’s chance of survival was reduced by 50% due to the EP’s negligence. “The defense might argue that the claim is unduly speculative, given the probability that the patient would have died regardless of the care provided,” Byrne explains.

These cases are legally complex because the bad outcome has two or more causes. Delayed ED care is one cause, but the underlying condition is another. There may be additional causes. “The traditional ‘but for’ causation test does not squarely fit this type of case,” Byrne notes.

For example, the ED provider is not responsible for the underlying condition. Often, the courts apply a “substantial factor” test. This looks at whether the EP’s care was a substantial factor in bringing about the result. “This relaxed causation standard is used in some cases that recognize this damages a theory,” Byrne says.

The plaintiff need only show the defendant’s actions increased the risk of harm to the plaintiff. “Other states will apply a stricter standard, asking the jury to decide whether they find a probability that the defendant’s negligence was a cause of plaintiff’s injury,” Byrne says.

Defending these cases requires careful analysis of medical causation. “The defense must develop an evidentiary argument, through expert witnesses, as to the patient’s chances for recovery, and how those chances were impacted with the passage of time,” Byrne says.

The plaintiff maintains the legal burden of proof. However, says Byrne, “it can be a practical reality that the defense in a delayed diagnosis case has the burden of persuasion, if their defense theory is that the delay caused no appreciable harm.”

That is because jurors start with the general presumption that “sooner is better” when it comes to diagnosis in the ED. A defense attorney trying to convince them the delay really caused no harm is going to be viewed with skepticism. “But it is a challenge that defendants must take on when the medical causation analysis is on their side,” Byrne adds.