Sometimes, the expert who is criticizing the EP’s care is a physician who never worked a single shift in the ED.
“To hold the EP to the same standard as the specialist who has specific areas of expertise is completely unfair,” says Brandon S. Kulwicki, JD, an attorney in the Dallas office of Hall Render.
Plaintiff attorneys frequently bring in experts with specific knowledge from whatever specialty is relevant to the condition that was missed or managed inappropriately. “It’s much easier for a specialist to talk about the areas in question because that’s what their focus is,” Kulwicki says.
When cardiologists are called to consult on an ED patient, they are specifically looking for a cardiac issue. The problem is that at the time the EP saw the patient, he or she had to take the patient as a whole and consider every possible diagnosis. “Unlike other specialties, emergency physicians don’t get to pick and choose the kind of patients or complications that they see,” Kulwicki says.
Plaintiff experts allege the EP should have ordered specific tests or conducted a more extensive workup. This may be unrealistic for the ED setting. “A lot of times, the ED doesn’t have the ability to order those tests without admitting the patients first,” Kulwicki notes.
The expert also has the benefit of hindsight. A cardiologist or neurologist testifying on behalf of the plaintiff already knows the problem that was identified. “Our goal is to educate them that the ED doesn’t necessarily have the time or ability to gather all of the facts,” Kulwicki explains.
The defense lawyer must explain how the role of the EP differs from that of specialists. “Emergency physicians are making the decision on whether to admit in minutes to hours. This is different from a hospitalist, who has days to treat the patient,” Kulwicki observes.
If the plaintiff expert truly never worked in an ED, the defense could try to strike the expert for not holding the requisite qualifications. If that is unsuccessful, says Kulwicki, “you’d want to talk about why the expert’s opinion doesn’t hold water.”
For instance, the defense attorney could tell the jury the EP had to focus on broader things than the specialist would. “Causation is the same regardless of specialty. But the standard of care may be different because of the level of expertise,” Kulwicki offers.
Most plaintiff experts, regardless of their current specialty, can truthfully state they did in fact work in the ED setting at one point in their career. “They may have done an ER rotation, but maybe they haven’t been in the ER since then,” Kulwicki suggests.
Sometimes, experts talk at length about their presence on the call list as part of their privileges. As part of that role, experts may consult in the ED on all kinds of cases routinely. Jurors will not realize this bears no resemblance to actually working as an EP. Still, the defense attorney can always point it out. “If the expert is not being honest, it’s easy to poke at that,” Kulwicki says.
The expert will need to admit he or she sometimes is home in bed when called by the EP to consult on a patient, and that the specialist has a base of knowledge that is very different from the EP’s. “If the plaintiff brings in a specialist instead of an EP, it’s usually because a doctor from that specialty wasn’t called. Something was missed,” Kulwicki explains.
The best person to refute that kind of testimony is a physician from the same specialty. “That expert can say, ‘These are the things I look for, and it’s not because I’m a physician but it’s because of my specialty,” Kulwicki says.
In one malpractice case, the patient came in with classic signs of a heart attack. The EP ordered a cardiology consult, which did not occur until hours later. The patient ended up dying of an aneurysm.
The focus of the lawsuit became whether a quicker consult could have prevented this. The experts disagreed on this point. The defense expert, an EP, contended that even if the patient had been taken back immediately for surgery, the outcome would not have changed. “The expert stated that the doctor met the standard of care in triaging the patient and ordering the consult,” Kulwicki reports.
The plaintiff’s expert, a cardiothoracic surgeon, said earlier intervention could have changed the outcome. The fact the expert is outside the field of emergency medicine became an issue. “The defense challenged his qualifications as an expert,” Kulwicki recalls. “No determination has yet been made.”