Two decades ago, Mark Tripp, MD, FACEP, was named in a malpractice lawsuit for the first time in his career. After he got over the initial shock, he realized that he had never even seen the patient who was suing him.
The patient, a schizophrenic, was being transferred to a state psychiatric facility just as Tripp was arriving for his shift. During his shift, a psychiatrist from the receiving facility called Tripp to ask if the patient could be observed in the ED for a period of time.
“I told him I could not give him advice on a patient I had no knowledge of. My name got written down in the chart,” says Tripp, currently an EP at Winchester (VA) Emergency Physicians and Front Royal Emergency Physicians. The patient died, and her brother sued as a representative of her estate.
Tripp was shocked to find he had been named in the lawsuit, along with several other clinicians and EPs. He soon found himself preparing for an upcoming deposition, and wanted to obtain compensation from the plaintiff attorney for his time. “I also wanted to sue the lawyer because he wouldn’t drop me from the case,” Tripp says. “I found out I couldn’t do either of those things.” The case was eventually dropped, but only after two years of litigation.
“There was nothing for me to second guess about the care, because I had never even met the person,” Tripp says. “But I had a lot of anger at the system.”
Even if the defense attorney makes it clear that the EP never saw the patient, it’s unlikely the plaintiff attorney will simply dismiss the EP. Jonathan D. Lawrence, MD, JD, FACEP, an EP at St. Mary Medical Center in Long Beach, CA, says, “It depends on how reasonable the plaintiff attorney is. But they understand that once a defendant is dismissed, they cannot bring them back into the case.”
John Bedolla, MD, FACEP, medical director of risk management at U.S. Acute Care Solutions Southwest Region in Austin, TX, notes that states vary in how they define a patient/physician relationship. “But anytime it’s a catastrophic outcome, the plaintiff names as many people as they can,” he says. “It’s about throwing as many deep pockets as they can into the mix.”
Here are some scenarios in which an EP might be named in a lawsuit despite never seeing the patient:
- If they are supervising a physician’s assistant (PA).
“If [the] EP is supervising a PA, the EP will be brought into the lawsuit regardless of whether the EP saw the patient or not,” Lawrence says. If an EP is sued for failing to adequately supervise the midlevel practitioner, a typical defense is that the patient presented with a minor complaint, and therefore wouldn’t be seen by the EP.
“The EP says, ‘It is not the sort of patient that I would typically put eyes on,’ I rely on the midlevel and I’m in a supervisory position only,” Lawrence says. The approach may or may not be successful.
Bedolla is aware of a malpractice lawsuit that resulted in a $20 million verdict against an EP. The case involved a patient who presented with dizziness and was seen by a PA. “The PA performed a pretty bad exam, and didn’t appreciate the gravity of the situation,” he says. “The EP was told about the patient but did not repeat the neurologic exam, so the EP was on the hook.”
Hospitals also can be sued for failing to put protocols in place on which patients the EP is required to see. Although good protocols can be legally protective, good communication can prevent bad outcomes in the first place. “If you encourage a culture of asking questions and cooperation, you won’t get those catastrophic outcomes,” Bedolla says.
EPs might wrongly believe that if they don’t discuss a patient with the PA, or see the patient, they won’t get sued because their name isn’t on the chart. “The idea that you can’t be sued if you never see the patient is a fallacy,” Bedolla warns.
- If something is ordered in the EP’s name before a patient is brought back to be seen.
Tripp explains, “When nurses do triage orders under one of the doctors working, it may or may not be the doctor who actually sees the patient.”
Similarly, if the EP misreads the ECG of a chest pain patient who is still in the waiting room, that EP faces potential liability exposure. “This is because they are taking an action by saying the patient can continue to wait in the waiting room,” Bedolla explains.
If the same chest pain patient experiences a bad outcome while waiting but the EP didn’t read the ECG, Bedolla sees less liability exposure. “Unless there is a positive action by the EP, it’s very hard to successfully sue the EP,” he says. “But if the EP recommended a course of action and there is a bad outcome related to that, they could be on the hook.”
- An ED registrar puts the EP’s name on the chart before the patient is seen.
Since, at that point, registration doesn’t know which EP is going to see the patient, Lawrence says, “the EP can end up getting sued, even though they had nothing to do with the patient.”
SOURCES
- John Bedolla, MD, FACEP, Medical Director, Risk Management, U.S. Acute Care Solutions Southwest Region, Austin, TX. Email: [email protected].
- Jonathan D. Lawrence, MD, JD, FACEP, Emergency Department, St. Mary Medical Center, Long Beach, CA. Phone: (562) 491-9090. Email: [email protected].
- Mark Tripp, MD, FACEP, Winchester (VA) Emergency Physicians, Front Royal Emergency Physicians. Phone: (540) 520-9996. Email: [email protected].
Even if the defense attorney makes it clear that the EP never saw the patient, it’s unlikely the plaintiff attorney will simply dismiss the EP.
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content