Unified Defense Not Always Possible in Malpractice Claim
By Stacey Kusterbeck
Medical malpractice defense attorneys typically advise all named defendants to present a unified defense. “However, in situations where there is potential liability among multiple providers, there is an incentive for emergency physicians to point the finger at the emergency department or healthcare system to protect themselves,” says Ryan T. Dahlquist, JD, an attorney at Degan, Blanchard & Nash in Lafayette, LA.
Emergency providers who are sued for a bad outcome that was beyond their control might be reluctant to cooperate with a unified defense approach. “Instead, they could offer their own defense. Or they could cast doubt onto the emergency department or healthcare system as a whole,” Dahlquist suggests.
An emergency physician (EP) defendant who is going to be deposed might testify the real problem was the department has been struggling with long-standing patient throughput issues. “There is the potential to open the system up to liability in the present case — and, potentially, in future cases,” Dahlquist cautions.
This is true under the Louisiana Medical Malpractice Act, Dahlquist notes. For example, claims of negligent hiring generally do not fall under the act, and could expose the ED or hospital to liability beyond the $100,000 cap provided by the act.1 Plaintiff’s counsel may try to elicit such testimony from the defendant EP. “The hope is that the provider will vent or divulge more information than is necessary,” Dahlquist explains.
Hospital leadership, or a corporate designee, could be deposed to determine if there are any other claims that could be brought. Negligent hiring or negligent staffing are two examples. “Putting the co-defendants’ interest in conflict with one another would make settling the matter more difficult and more costly,” Dahlquist cautions.
If the EP and the hospital blame each other, it is unlikely one attorney or firm could represent both defendants. That complicates the litigation. “The more attorneys involved in a matter, the more difficult it is to settle the matter,” Dahlquist explains. “Additionally, this could create an opportunity for plaintiffs’ counsel to pit both the hospital and the provider against each other for their benefit.”
In most jurisdictions, the duty of care requires a medical provider to act as a reasonable, prudent provider would act under similar circumstances. Some states require plaintiff attorneys to submit all claims to a medical review panel.2 “The idea is to let other providers from similar specialties review the evidence and determine whether the provider involved in litigation acted within their duty of care,” Dahlquist explains.
The providers on the panel likely deal with similar underlying issues at their respective hospitals. Therefore, issues such as staffing shortages or confusing electronic medical records could provide a defense for the EP if the panel members believe they would have acted similarly to the EP defendant. For instance, if a malpractice claim alleges the EP delayed care of a gunshot victim, the EP might be able to prove two emergent patients were in the ED simultaneously. If neither patient was stable enough to transport, and there was only one EP available, the defendant could use that as a shield in a medical malpractice claim alleging negligence.
“However, the hospital will likely not be afforded the same treatment in a claim for negligent and unsafe staffing, or for failing to properly divert the emergency treatment to another facility under EMTALA,” Dahlquist cautions.
When the hospital and individual EP are at odds in medical malpractice litigation, “it is more difficult for the hospital overall,” says Edna McLain, JD, a partner in the Chicago office of Amundsen Davis.
Depending on the jurisdiction, the hospital may be vicariously liable for the provider’s conduct anyway. In that case, finger-pointing would not help. “Unfortunately, the reported ‘mega-verdicts’ in medical negligence cases in recent years increases the likelihood of providers trying to assign blame to other medical providers or to the hospital itself,” McLain laments.
Fear of facing a huge jury verdict that exceeds the limits of professional liability coverage could lead an EP to conclude it is safer to spread the blame. “But this is rarely a good strategy,” McLain cautions. “It only serves to help the plaintiffs in litigation seek higher verdict values.”
To guard against this possibility, defense counsel must be aware of the competing interests in any case. Attorneys should engage in frank discussions with the hospital and any employed staff who are named defendants. “If employed staff cite staffing shortages and lack of resources as a contributing factor to the potential outcome experienced by a patient, the hospital administration needs to be aware of it,” McLain underscores.
There must be a cohesive strategy to respond to any such criticisms. However, individual staff members named in lawsuits should not be speculating on whether a staffing shortage existed, or whether a staffing shortage caused or contributed to a patient’s alleged injury.
Commonly, ED nurses or physicians are asked during depositions how many providers typically are on shift at the ED. Plaintiffs’ counsel may even ask for the number of patients seen during a shift, and request the hospital produce census data. “Defense counsel should determine whether a particular nurse or EP complained about staffing levels in the past, or during the time at issue during the case,” McLain says.
Defense counsel should know this information before written discovery and depositions begin. Witnesses should be cautioned to avoid speculating on these topics at the deposition. For instance, the number of staff assigned to a shift likely is a decision made by someone in a supervisory or administrative role. “If the deponent knows who that person is, so be it. Ideally, defense counsel will have this information already and anticipate this may be an area of inquiry,” McLain says.
When responding to a question about staffing, the person under deposition could suggest someone in a supervisory or administrative role should be the ones to answer. “Depending on the rules of the jurisdiction, it is also possible such testimony could expose the hospital to liability,” McLain notes.
Thus, care must be taken when designating and preparing an individual to provide testimony on behalf of the hospital. “Whether testimony is binding on the hospital itself will depend on that individual’s role,” McLain adds.
EPs cannot assume they will be acquitted if they point the finger at the hospital. “Placing blame on others does not excuse an ED physician’s care of a patient if it did not comply with the applicable standard of care,” McLain warns.
2. Law Office of Kelley J. Johnson. How does the medical review panel work? Feb. 28, 2011.
Defense counsel must be aware of competing interests in any case. Attorneys should engage in frank discussions with the hospital and any employed staff who are named defendants. There must be a cohesive strategy. Individual staff members named in lawsuits should not be speculating on whether a staffing shortage existed, or whether a staffing shortage caused or contributed to a patient’s alleged injury.
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