The vast majority of the time, ED patients who call an attorney hoping to sue for malpractice are turned down. The reasons are many. “Based on conversations with experienced medical malpractice attorneys over the last 35 years, I would estimate that fewer than 10% of the cases presented are accepted by lawyers specializing in professional liability claims,” says Richard F. Cahill, JD, vice president and associate general counsel of Napa, CA-based The Doctors Company.

During the initial phone call or meeting, complainants often provide a compelling narrative, but it falls apart after an independent expert reviews the ED chart. False or misleading statements about what happened in the ED “undermine the patient’s credibility. It destroys the trust necessary to support an ongoing attorney-client representation,” Cahill says.

The cost of filing a malpractice lawsuit, and the low odds of prevailing, mean long odds for patients looking to become plaintiffs. “Most individuals seeking redress for adverse medical or hospital events are unable to retain an attorney willing to represent them,” Cahill says.

If damages are low, few attorneys will be interested. Cahill offers this example of a case with marginal liability and minimal damages: A patient presents to an ED with moderate upper respiratory symptoms, waiting nearly three hours before being seen. During the prolonged wait, the patient suffered discomfort and anxiety. Due diligence by the prospective attorney reveals the other side of the story: The ED was inundated with numerous severely injured victims of a multivehicle car accident. Despite the delay, the diagnosis and treatment for the potential client were entirely appropriate. “Undoubtedly, a high percentage of attorneys would decline to represent the patient in that situation,” Cahill says. Pursuing medical negligence claims “presents numerous procedural and substantive challenges for all parties involved; is invariably expensive, both economically and emotionally; and results in an unfavorable outcome for the patient-plaintiff in more than 70% of cases,” Cahill adds.

One thing that makes ED malpractice cases so costly is the standard of care at issue must be established by expert testimony. In emergency medicine cases, the patient may have been treated by clinicians across multiple specialties. This means more costly experts are needed to prove the case, according to Elizabeth A. Harris, JD, associate attorney in the health care and life sciences practice in the Washington, DC, office of Epstein Becker Green.

Plaintiff attorneys conduct due diligence in determining if an ED patient will be accepted as a client in several ways:

  • Interview the patient, family members, friends, or others who know the circumstances of the situation. “The goal at this stage is to gather preliminary information, appraise the credibility of witnesses, and estimate the likely range of economic recovery,” Cahill explains.
  • Obtain the relevant medical records.
  • Secure a supportive independent opinion by a physician expert or forensic nurse reviewer.

Attorneys look for red flags in the ED chart. It is a bad sign if the patient was combative, verbally abusive, noncompliant, or uncooperative during the visit. It also is problematic if the patient left the ED against medical advice. “An unsympathetic patient creates an increased challenge for counsel to persuade a judge, jury, or arbitrator that the case merits a finding of liability and an award of monetary damages,” Cahill says.

Intake calls to a law firm come in all the time from patients, family members, or referring attorneys. Few turn into lawsuits. “Most plaintiff attorneys take 20% or less of those persons who call,” estimates Susan Martin, Esq., executive vice president of litigation management and loss control at Fort Lauderdale, FL-based Best Practices Insurance Services.

In addition to the expert’s opinion, attorneys consider other factors. “Attorneys look at whether it’s a likable client with a credible story, and will also look at the venue to see if that county is more or less favorable to plaintiff attorneys,” Martin reports.

As the case is evaluated, the attorney keeps in mind that to prevail, the plaintiff must prove there was a standard of care violation, the violation led to the injury (also known as causation), and there were damages. All this requires an expert opinion to establish. “Many times, there is a violation of the standard of care, but causation is difficult,” Martin notes.

A ruptured thoracic aneurysm in the ED is a good example. One prospective case involved an obese man with a long history of uncontrolled hypertension who presented to a rural hospital without a 24-hour operating room. The patient coded after an evaluation by the EP, who was waiting for the results of radiological studies. The patient could not be resuscitated, and was pronounced dead in the ED. The family wanted to sue, but causation was a problem. “As most experts will opine, unless you are very close to an operating room, these type of aneurysms are not survivable,” Martin says.

A plaintiff expert might prove the patient could have been transferred sooner, and the defense expert may concede this point. The problem for the plaintiff is a quicker transfer would have made no difference to the bad outcome; in other words, the patient would have died anyway. “Most reputable plaintiff attorneys would not consider this a medical malpractice case, as causation would be difficult to impossible to prove,” Martin says. “There is no lawsuit.”

With so many promising cases rejected, plaintiff attorneys spend a lot of time explaining why a lawsuit is not going to happen. Sometimes, the family is angry. Others actually are relieved there was no wrongdoing. “The family may feel remorse or guilt over something that occurred. Maybe they didn’t go to the ED quickly enough or didn’t believe it was really life-threatening,” Martin suggests.

For an ED case to make financial sense, there must be damages. “Many times, the damages can be the real problem,” Martin says.

This happens with some missed appendicitis cases. In one such episode, a young woman presented to an ED for right lower quadrant pain and was discharged with diagnosis of ovarian cyst. The patient saw an OB/GYN the next day, as instructed by the EP, and was immediately sent to the hospital to see a surgeon. She underwent an appendectomy and recovered.

It is true this patient really should have undergone a further workup in the ED. Finding an expert to state there was a violation of the standard of care would not be too difficult. However, even if the ED had made the correct diagnosis, the patient would have undergone the appendectomy a day earlier, with the same outcome. “She had the same amount of time in the hospital, with a same or similar procedure, which would have occurred anyway. There are no real damages,” Martin says.