When an EP is sued for malpractice, many immediately envision testifying in court before a jury. In reality, few ED claims (7.6%) make it that far. Most cases (65%) actually end up dropped, dismissed, or withdrawn, according to a recent analysis.1
“The vast majority of professional liability claims are aggressively defended at every stage of litigation,” says Richard F. Cahill, Esq., vice president and associate general counsel at The Doctors Company in Napa, CA.
An adverse jury verdict, arbitration award, or settlement carry serious implications for EP defendants. These may include personal financial exposure, adverse publicity, protracted mental duress, medical board investigations, limitations on hospital privileges, access to third-party payor networks, reports to the National Practitioner Data Bank and specialty medical societies, and costlier malpractice premiums. Defense lawyers will do all they can to demonstrate the claim is legally insufficient and should be dismissed as a matter of law. “Such motions frequently prevail and not uncommonly are sustained on appeal, thereby reducing the parties available to pursue,” Cahill says.
The following are some reasons ED malpractice claims are dropped:
• Plaintiff’s counsel decides to focus more distinctly on the most culpable defendants. For that particular case, it does not include the EP. “Peripheral or less responsible providers, especially physicians practicing in the ED setting, are commonly dismissed once the deposition is taken as the date for trial or arbitration approaches,” Cahill notes.
• Plaintiff attorneys might drop claims solely because filing deadlines were not met. “Deadlines are state-specific, and may require precise calculation based upon the statute of limitations and any mandatory presuit administrative proceedings,” says Maryann G. Hoskins, JD, an associate at Degan, Blanchard & Nash in New Orleans.
Some states require a claimant to submit an administrative complaint before filing a malpractice lawsuit. Inexperienced attorneys, unaware of this requirement, might file the malpractice lawsuit near the deadline without submitting the administrative complaint. In certain cases, Hoskins has called the plaintiff attorney to share this news, and the case was dismissed shortly afterward. It is unknown whether the client is told the actual reason (i.e., failing to file timely). “Did they dismiss it because it’s a weak case, or was it because they don’t want their legal malpractice brought to light?” Hoskins asks.
• Plaintiff attorneys might drop the claim when they discover the EP is not a hospital employee. “Many plaintiff attorneys erroneously believe that the EP is employed by the hospital,” Hoskins reports.
More often, EP defendants are employed by a group that staffs the hospital’s ED. “If they sue the hospital and the EP, they might dismiss the EP when they find out the EP is not an employee,” Hoskins explains.
When a claim is filed, plaintiff attorneys often name multiple defendants to ensure the named party is correct. For example, a malpractice lawsuit might name the EP, the charge nurse, and a radiologist.
“However, as discovery progresses, plaintiff attorneys often dismiss one or more defendants — often the EP — in order to proceed with a more straightforward claim against one defendant,” Hoskins adds.
- Wong KE, Parikh PD, Miller KC, Zonfrillo MR. Emergency department and urgent care medical malpractice claims 2001-15. West J Emerg Med 2021;22:333-338.