Attention-getting claims about ED care might be good for the hospital’s bottom line, but they can also increase legal exposure for EPs.
“There are many pressures and temptations for hospitals to advertise a full specialty backup, or chest pain care. But anytime promises are made that may not be met, one enters into the risk zone,” warns Michael Blaivas, MD, FACEP, professor of medicine at University of South Carolina Medical School and an EP at St. Francis Hospital in Columbus, GA.
Some ED ads are closer to wishful thinking than reality.
“Marketing folks are very good at what they do. But they are usually not clinically trained, and have a relatively modest grasp of the limitations inherent in the practice of medicine,” says Joseph P. McMenamin, MD, JD, FCLM, a Richmond, VA-based healthcare attorney and former practicing EP.
Blaivas gives these two scenarios in which advertising could bolster a plaintiff’s case against an EP:
- An ED advertises excellent stroke care, but for some reason the neurologist is unavailable and a transfer has to be made, or a delay occurs and the treatment window is missed;
- An ED advertises excellent cardiac care, but care is delayed due to the cardiac catheterization lab being busy with another myocardial infarction patient, or the interventionist is off and care is delayed due to the need to transfer the patient.
“A very negative picture can be painted of an ED that lured in patients and reneged on the promise,” Blaivas says.
“Puffing,” or exaggerated claims made by salespersons or in advertisements concerning the quality of goods or services being offered, presents opinions rather than facts and is usually not considered a legally binding promise, McMenamin notes. “The law will tolerate a certain amount of puffing, probably even by healthcare professionals, before it will conclude the information is sufficiently factual and specific as to constitute an actionable promise,” he explains.
In a still-pending medical malpractice case, the plaintiff claimed he sought care at a particular ED specifically because of advertisements promising “remarkable care.”1,2
“The case was first filed as a straightforward medical malpractice case,” says Gary Weiss, JD, the Louisville, KY-based attorney representing the plaintiff. The claim alleges a nurse practitioner saw a patient but failed to diagnose the patient’s acute diverticulitis, and the hospital was negligent in not ensuring the patient was seen and evaluated by a board-certified EP despite advertising “world-class emergency room care.” During the course of litigation, Weiss filed an amended complaint alleging false and misleading advertising. The court dismissed the amended complaint on the basis that the timeframe exceeded the statute of limitations.
“The advertising is still in the case,” Weiss notes. “My experts will testify that it was below the standard of care for an ER holding itself out as having ‘world-class’ care to not have a policy or protocol that would require that an EP see any patient with a serious condition like severe stomach pain.”
Absence of Specialty Expertise
Advertisements promising the ED provides “pediatric care experts,” “orthopedic services available,” or “chest pain center in the ED” are “especially fraught with problems if the promised care cannot be delivered one day, or care expectations are not met,” Blaivas says. “While they may not violate any laws of false advertising, the jury may take a different view and feel their community is being duped.”
It is easy to imagine a plaintiff attorney tying a patient’s bad outcome to a delay or absence of promised expertise.
“Perhaps the geriatric care given was by a novice provider with no specific geriatric expertise to wave in front of a jury, and a negative outcome occurs,” Blaivas says.
Advertised claims don’t necessarily affect the standard of care to which the EP is held.
“The standard of care is the standard of care regardless,” Blaivas asserts. In one case involving a stroke patient Blaivas reviewed, a plaintiff attorney seemed to be suggesting otherwise by claiming the ED did not meet the standard of care “especially with a stroke certification.” The attorney claimed the patient and family were well aware of advertisements that promoted the ED as a stroke center.
“The association was loose, but it seemed to create doubt in the jurors’ minds, according to the plaintiff attorney,” Blaivas recalls.
If an unanticipated bad outcome occurs, patients who have seen advertisements, “might have a heightened sense of disappointment — and possibly a lower threshold for pursuing litigation,” McMenamin adds.
Here are some other legal risks caused by ED marketing:
- If the plaintiff can show the EP didn’t deliver what was promised, it opens up the possibility of an additional cause of action for breach of contract.
If, for some reason, the wait time is longer than posted, or imaging or a specialist is not available for a given patient, “that is something an attorney can use as a sign of a breach of contract the hospital and ED makes with the incoming patient in a medical sense,” Blaivas says.
The plaintiff attorney can claim the ED breached a contract with the patient by failing to provide specific care that was promised, in addition to the implicit promise to comply with the standard of care.
“A creative plaintiff lawyer could come at the defense with not one but two theories — one for medical malpractice, for failure to comply with the standard of care, and another for breach of contract,” McMenamin says.
Statements such as “we are the number one ER” allow plaintiffs’ lawyers to argue the advertiser made a promise about the quality of care patients can expect to receive.
“The more theories there are for the defense to contend with, the greater the possibility the plaintiff will recover on at least one of them,” McMenamin adds.
Additionally, a breach of contract claim generally has a longer statute of limitations than does a tort claim. “So the period of time you are at risk is extended, often appreciably,” McMenamin says.
- A breach of contract claim might be more inflammatory than a negligence claim.
“If an ED were sufficiently foolhardy to advertise the proposition that ‘we are better than anybody else when it comes to diagnosing chest pain. We get it right every time,’ and somebody comes in and you misdiagnose chest pain, it might be a barn burner,” McMenamin warns.
While there is a certain level of sympathy for an EP who simply made a careless mistake, juries might be less sympathetic if it appears the ED intentionally misled the public.
“This can stoke the flames and may get a jury to award punitive damages,” McMenamin says. “And depending on the ED’s claim, and how much stock the patient can persuade the jury the patient put in it, a claim for fraud is a possibility.”
- Tort reform legislation, enacted in many states, imposes caps on damages that can be imposed on healthcare providers that have breached the standard of care — but it typically doesn’t apply to contract theories.
“If count one is malpractice, the cap will apply. But if count two is breach of contract and the plaintiff prevails, then depending on the language of the cap statute, that cap may not do you any good,” McMenamin says.
- Using EPs in advertisements puts the hospital at risk for additional liability exposure, because it could result in independent contractors being considered as agents of the hospital under the law.
If EPs are depicted in advertisements featuring the hospital logo, plaintiffs’ counsel can argue a reasonable person would assume they’re employees of the hospital. If EPs are independent contractors, the individual EP named in the suit and possibly the ED group can be held liable for malpractice, but not the hospital.
“But if the ad features the hospital logo and on the white coat worn by the emergency physician it says ‘Joe Smith, MD’ with the hospital’s name underneath it, even if the contract says in no uncertain terms these are independent contractors, there is a doctrine in some states called ‘apparent authority’ that may apply, depending on the facts,” McMenamin explains.
This means the hospital may not be able to escape liability by arguing the EP was acting as an independent contractor as opposed to an agent of the hospital.
“If the plaintiff attorney can convince the finder of fact that the patient went to that ER as a result of the hospital’s public statements he or she was under the reasonable impression that the physician worked for the hospital, then in a state that honors this notion, the hospital may not be able to prevail on the independent contractor defense,” McMenamin notes.
This holds true even if the patient signed a form acknowledging the EPs are independent contractors and not hospital employees.
“It then becomes a question of whether that’s enough to get the hospital off the hook. Depending on the jurisdiction, it very well might not be,” McMenamin says.
The patient/plaintiff can argue, “I didn’t understand all the legalese I was signing. I’m not a lawyer, and I was in severe pain.”
“If the jury buys that, and further buys the patient’s claim that ‘I went there because I saw the ad and had faith in this hospital,’ the hospital may be liable for the malpractice of the EP — even though, in the eyes of the law, the EP is an independent contractor,” McMenamin says.
Tone Down Pie-in-the-Sky Claims
Hospital websites are the biggest culprits when it comes to “overpromising and underdelivering,” according to McMenamin.
“Be sensitive to the fact that some of the people reading this material are not your friends, and will look for ways to hit you over the head with your own words.” McMenamin cautions against using words that are absolutes, such as “all,” “best,” “fastest,” “always,” or “never.”
“There is a world of difference between saying, ‘We please all our patients,’ and ‘Our goal is to please all our patients,’” he says.
Hospital administrators find themselves torn between keeping up with competitors and toning down marketing claims to avoid legal exposure.
“The CEO has a risk manager saying ‘Don’t run this ad, it’s too risky,’ and marketers saying, ‘Look at the ad that your competitor just ran.’ That can be a tough call,” McMenamin acknowledges.
McMenamin recommends having a wary clinician review any claims made about ED care before they are aired on radio or TV, printed in publications, or posted on hospital websites.
“If I’m a marketing person, the last thing I want to do is clog up my carefully worded copy with footnotes, warnings, ifs, ands, or buts,” he says. “But it’s just so easy for a plaintiff attorney to cross-examine an EP when the marketing person went overboard, and I hate to see that happen.”
REFERENCES
- http://www.courier-journal.com/story/news/local/2014/08/18/lawsuit-says-ads-er-ads-misleading/14237193.
- Burton v. Norton Healthcare et al. Jefferson Circuit Court. Case number 13-CI-01707.
SOURCES
- Michael Blaivas, MD, FACEP, MD, FACEP, professor of medicine at University of South Carolina Medical School, and an EP at St. Francis Hospital in Columbus, GA. E-mail: [email protected].
- Joseph P. McMenamin, MD, JD, FCLM, McMenamin Law Offices, Richmond, VA. Phone: (804) 921-4856. E-mail: [email protected].
- Gary Weiss, JD, Louisville, KY. Phone: (502) 493-1394. E-mail: [email protected].
Misleading marketing claims catch jury’s attention.
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