Most emergency medicine (EM) residents have no idea how malpractice litigation works. A residency program collaborated with a law school to create a realistic, fabricated case to dispel misconceptions. (Learn more here.)
Mark Curato, DO, assistant director of the EM residency program at St. Barnabas Hospital in Bronx, NY, wanted his students to know what it was like to be the subject of litigation. Curato connected with Adam Shlahet, JD, director of the Brendan Moore Trial Advocacy Center at Fordham University’s School of Law in New York City. Together, they created a medical malpractice litigation practicum for a group of eight advanced students. “We came up with a fact pattern that was both typical and balanced, where it’s a real judgment call,” Shlahet says.
An EM resident volunteers to play the part of the defendant and becomes the “client” of the law students. “We tweaked the facts so it is a pretty even case. It’s not a slam dunk for either side,” Shlahet notes.
The case involves a man in his 60s who goes to the emergency department (ED) complaining of chest pain. Emergency physicians (EPs) perform several tests, including an ECG that could be interpreted in different ways. The patient is sent home with a diagnosis of anxiety and panic attack. The following morning, the patient dies of a heart attack in an ambulance on the way to the hospital.
The EP defendant is served with a complaint, but does not recall the patient, even after reviewing the ED medical records. “This is much like a true-life scenario. When you see so many patients, and it happened two years ago, it’s a real possibility that there is no independent memory of the patient,” Shlahet observes.
Next, the EP defendant meets with the defense team. The plaintiff attorney meets with an actor portraying the widow of the decedent. Some students produce an actual transcript of the depositions. At the end of the semester, it all culminates in a trial, with expert witnesses (the chair of the ED and another EP) testifying on both sides. The remaining EM residents serve as jurors, or simply observe.
The EM residents always start off wanting to explain what really happened to clear their names. “But telling their side of the story is really not the goal of the deposition,” Shlahet explains.
Law students convey the importance of giving honest, accurate answers while not offering any additional information. They also train defendants to pause to think about questions before responding. “That’s something that’s counterintuitive, and that requires real practice,” Shlahet says.
Law students see that clients are more than just fact patterns — they are real people who have lost someone. “They need to be brought into the process, not as an impediment to the process, but almost [as] the whole point of the process,” Shlahet offers.
Reactions at the end of the trial always are interesting. The EM residents usually are surprised at what the jury paid attention to and what they disregarded.
“Some jurors focused on the conduct of the widow and how her delay in calling 911 may have been the real cause of death, even though the defense lawyers never made or even implied that argument,” Shlahet reports.
Initially, most EM students expect the case will center solely on whether the standard of care was met. They are confused when the plaintiff attorney argues medical “facts” they know really are not accurate. “They see that the only medicine that matters in the courtroom is what the experts explain,” Shlahet says.
If nothing else, the EM residents leave the experience with a keen understanding of the significance of documentation. Seemingly inconsequential details quickly become the entire focus of the trial. “They understand the gravity of each of their notations, not just what they are documenting but what they are not documenting,” Shlahet explains.
As the litigation progresses, expert witnesses and attorneys on both sides are brought in to speak about relevant topics. “As a lawyer, we tend to think that everyone thinks like a lawyer,” Shlahet says.
The law students realize defendants are thinking like doctors, not legal experts. “How a case would play out in litigation is the last thing most of them are thinking about,” Shlahet adds.
When actual cases go to trial, damages and liability often are decided concurrently. The jury is deciding if the EP did commit medical malpractice; if so, how much is the plaintiff awarded? In the fictitious case, the closing arguments detail how the decedent left behind a daughter, and the struggle of how to put a dollar amount on that loss. “These are really powerful concepts, and some doctors are really moved by that,” Shlahet observes.
The medical students see how difficult it is to look at facts in a cold and clinical way. They are much more comfortable focusing on whether there was a standard of care deviation. “But the jury hears a lot of information and evidence about the loss that this death that has caused,” Shlahet says.
In the first two years of the program, the jury returned a verdict for the defendant. In the third year, the jury found for the plaintiff. “The three big factors are the conduct of the lawyers, the performance of the experts, and who the jury is,” Shlahet says. “The juror’s life experiences completely shape how they take in facts and testimony.”
The law students learn they really need to understand everything in the ED chart. “If you don’t take the time to learn what an acronym stands for, it’s the one thing that’s going to come back at you at trial,” Shlahet cautions.
Medical students come to see that malpractice cases are not really as frivolous as they had imagined. “People come in with very black and white notions,” Shlahet adds. “They leave with a much more nuanced understanding about how cases actually play out.”