If a hospital has below-average quality ratings, suboptimal satisfaction scores, or recent Emergency Medical Treatment and Labor Act violations, plaintiff attorneys will want the jury to know all about it. However, these are not necessarily going to be admissible in malpractice litigation.

A basic tenet of legal jurisprudence is that “if someone was convicted of a similar crime in the past, this fact cannot necessarily be admitted as evidence to prove the future propensity of committing the act in question,” says Rade Vukmir, MD, JD, FCCP, FACEP, FACHE, president of Critical Care Medicine Associates and clinical professor of emergency medicine at Temple University and Drexel University. The same can be true for civil claims such as malpractice allegations. “You’ve now got a whole host of objective and subjective measures that are available to the public, examining different outcome measures and processes,” Vukmir observes.

These include customer experience scores such as Press Ganey; the Hospital Consumer Assessment of Healthcare Providers and Systems survey; and objective quality scores published by ProPublica, The Leapfrog Group, and the Centers for Medicare & Medicaid Services. “Can any of it be used in malpractice? The answer is, it’s an unknown,” Vukmir explains. “This is uncharted territory. These are relatively new public disclosures.”

The fact that an emergency physician (EP) has been sued before generally is not admissible. This is because “the probative value is viewed as not that significant compared to the case at hand. The prejudicial value might overwhelm fair evaluation process,” Vukmir says. However, the concept of “habit evidence,” where a provider’s routine practice relates to the medical care at issue in the lawsuit, may be admissible. An EP defendant also can “open the door” by talking about the hospital’s track record. For instance, the EP might state, “A two-hour delay in tPA [tissue plasminogen activator] administration could never have happened. Our ED [emergency department] has shorter door-to-drug times than any hospital in the state.”

“Now, the probative value of the evidence could be more than the prejudicial value,” Vukmir explains. The plaintiff attorney probably would be well-prepared to make an issue of it. “They do the research, and they are at the ready,” Vukmir says.

Plaintiff attorneys may want to point out the ED allegedly has terrible scores on a publicly reported metric involving the condition the plaintiff presented with. “It might be true. But historically, civil litigation does not let you extrapolate how you generally do to how you did with this case,” Vukmir says. Depending on the venue, the plaintiff is not necessarily allowed to connect how the hospital does with myocardial infarction (MI) patients in general, with one particular patient who alleges an MI was missed. “They are concerned only with the specific facts bearing on this particular patient,” Vukmir says.

For this reason, if a plaintiff attorney asked how the ED performs on quality measures, the defense attorney would direct the EP not to answer. If the hospital is named in the lawsuit, then hospital-based data could be admissible in the right circumstances. There may be a particular reason such data are relevant to the case.

“Still, if the perception is that the hospital performed poorly on a quality measure, that doesn’t mean that this individual patient’s care was necessarily substandard,” Vukmir adds.