What Can "Empty Chair" Defense Do for Sued EP?

If the hospital isn't named in a medical malpractice lawsuit, an emergency physician (EP) defendant can sometimes take advantage of the "empty chair" defense strategy, says Joseph P. McMenamin, MD, JD, FCLM, a partner at Richmond, VA-based McGuireWoods LLP and a former practicing EP.

If there is no codefendant hospital, and if the record supports the testimony, an EP might be able to able to claim, "The nurses didn't tell me x, y, or z, when in fact each was true," or "They didn't bring to my attention the alarming change in the patient's vital signs."

"If the hospital isn't there, then you can criticize the hospital all day long and the jury might buy that. They might, indeed, find that the plaintiff has simply sued the wrong party," says McMenamin. "In certain circumstances, that can be an effective defense."

If the EP takes the same approach when the hospital is also a defendant, however, "it's dangerous, because if you criticize the hospital, its personnel may respond in kind," says McMenamin. Even if the EP uses the "empty chair" defense and blames the hospital, though, the plaintiff attorney isn't likely to let the EP off the hook. He or she might try to discover how long the EP was aware that a particular nurse wasn't very reliable, for instance.

"Never underestimate the creativity of the plaintiffs' bar," McMenamin warns. "These are clever people, and they will come up with ingenious, even diabolical, theories that can trip you up."

Additional Defendants

Naming other parties besides the EP in a malpractice lawsuit is "easy enough to do," says McMenamin. "Generally speaking, from the standpoint of the plaintiff, the more defendants the better," he says. "There are a whole slew of reasons why plaintiffs are very happy to have more defendants."

A lawsuit might include both a malpractice claim against the individual EP and a malpractice claim against the emergency medicine group and/or the hospital, based on the theory that the EP is acting as an agent for another party "and, therefore, his malpractice is now, it will be argued, their malpractice," says McMenamin.

From the EP defendant's standpoint, if the hospital is also named in the suit, there is the possibility of shared liability. If there is joint and several liability, as is often the case, the hospital would be liable for 50% of the verdict rather than the physician being liable for 100%, says McMenamin.

"Assuming you can fashion a united front, you have not one but two lawyers hammering away at the plaintiff's experts," he adds. "You perhaps even have the opportunity to share experts — maybe not on standard of care, for example, but on causation."

Juries typically have a low threshold for finding against an organization or institution, rather than an individual, notes McMenamin. "They may see the hospital as a pile of bricks, when, in fact, it's a bunch of human beings working with restricted resources often under difficult circumstances," he says. "From the EP's point of view, looking at it purely selfishly, that mistaken viewpoint may not be entirely bad."

If the jury finds against the hospital, however, there's a risk that the jury will "just lump the doctor in with the hospital and not draw a sharp distinction between the two," adds McMenamin.

Also, if the hospital is named in the malpractice suit, administrators might choose to defend themselves by criticizing the EP. "If that happens, then you are dodging bullets being shot at you not only by the plaintiff but also by your co-defendant, the hospital," says McMenamin.


For more information, contact:

• Joseph P. McMenamin, MD, JD, FCLM, Partner, McGuireWoods, LLP, Richmond, VA. Phone: (804) 775-1015. Fax: (804) 698-2116. E-mail: mcmenamin@mcguirewoods.com.