Many ED malpractice claims include multiple defendants. Each defendant has unique (and sometimes competing) interests.
“Coordination of claims defense efforts in these cases is key,” says Marc E. Levsky, MD, a board member of the Walnut Creek, CA-based The Mutual Risk Retention Group and an EP at Marin General Hospital in Greenbrae, CA.
“It’s very difficult to consistently make a united front. We just try to keep a lid on it,” says James B. Edwards, JD, a Stafford, TX-based medical malpractice defense attorney. The defense team’s first step is to determine where the liability primarily lies. “We ask, is this a doctor case or is this a hospital case?” Edwards says. “It has to be looked at carefully and from the beginning,”
If a conflict comes up during litigation, one of the defendants could be put at a disadvantage because he or she hires a new attorney late in the game. “The risk is that one defendant will have to be spun off to a new lawyer who has not been involved from the beginning,” Edwards says.
Sometimes, it is apparent right away that the interests of the EP and the hospital are at odds. “It’s usually fairly easy to identify cases where you can’t represent both parties just by reading the plaintiff pleadings,” Edwards notes.
Edwards represents EPs and hospitals together, but only in cases where their interests are truly congruent. “Those are usually cases where nobody did anything wrong and there are no known conflicts of interest,” he reports.
The plaintiff attorney may bring a strong case against the EP and a weak case against the hospital. The hospital is kept in the case as a deep pocket, particularly if potential damages are in the millions. “Most EPs in Texas only carry $200,000 in limits,” Edwards says. “It’s the EP who is the legitimate defendant, but the last thing the plaintiff attorney wants is to get a big judgment they can’t collect on.”
In some states, the defendant can enter into a high-low agreement. This might benefit the EP, but not the hospital. “If that’s the case, then they usually need to have separate lawyers representing the separate parties,” Edwards advises.
Multiple ED defendants sometimes share the same malpractice insurance provider. Even if they are not criticizing one another’s care, separate counsel may be needed. “When the entities providing malpractice insurance for co-defendants are different, separate counsel will almost always be involved,” explains Melanie Heniff, MD, FACEP, FAAP, assistant professor of clinical emergency medicine at Indiana University School of Medicine and a JD candidate at Indiana University’s Robert H. McKinney School of Law.
Attorneys representing the hospital and the EP are obligated to defend the interest of both parties. “If they don’t, it actually puts the lawyer and the insurance company at risk,” Edwards cautions. If the lawyer did something that is good for the insurance company but harmful to the client, both the lawyer and the insurance company can be held liable, he explains.
Regardless, some EPs hire personal counsel at their own expense. Typically, these attorneys have no right to participate in the litigation. Their role is to observe matters and serve as a private advisor to the EP. “This way, the EP is getting advice from somebody they know doesn’t have any connection at all from the insurance company,” Edwards says.
This becomes important if the EP wants to defend the case, but the insurance company wants a quick settlement. “It happens all the time. The lawyer has to promote the interests of the insured, who wants to defend the case,” says Matthew P. Keris, JD, a shareholder in the Moosic, PA, office of Marshall Dennehey. Assuming there is no consent-to-settle clause, the insurance company makes the final call. All the defense attorney can do is advocate for the EP’s position. “There is very little, though, that we can do to make the insurance company do what the doctor wants,” Keris says.
Outside counsel can be more aggressive. “Threats may need to be made. ‘You better settle this case, or my client will go to another hospital,’” Keris says. The outside counsel also can argue that the insurance company is acting in bad faith by refusing to settle a case within the policy limits. A threatened lawsuit in the event of a verdict in excess of the policy limits can be an effective tactic.
The situation is coming up more often since most insurance policies lack consent to settle clauses. This takes the choice out of the EP’s hands. “The insurance company can do whatever they want, really,” Keris adds.
Attorneys must consider each defendant’s role independently to determine potential conflicts, according to Heniff. The timing of care, the role each defendant played in the patient’s care, and the information and resources available to each all come into play. “Defending one’s own care does not usually need to involve being critical of co-defendants,” Heniff notes.
Waivers of conflicts can allow attorneys to continue representing multiple defendants in a claim. This gives all parties a full disclosure of how potential conflicts could affect their interests. This works sometimes, even if their interests are not completely aligned. “But sometimes there are conflicts that you just can’t get around,” Keris cautions. “I’ve been in situations where people have different version of events, and each is blaming the other.”
Attorneys may need to represent one defendant and ask someone else to represent the other defendant. Ideally, this happens before privileged communication takes place.
“Otherwise, the attorney has confidential information from one client that goes against another client’s interest,” observes Keris, adding that continued representation of both defendants is no longer possible. “You have to be very vigilant in making sure there are no conflicts before you dive deep in the case. As soon as you get a whiff of a conflict, you want to insulate both parties.”
An ED nurse’s statement that the EP co-defendant caused the patient’s bad outcome could become a pivotal part of the nurse’s defense. The attorney could continue representing the nurse, but someone else would have to represent the EP. “If the ED nurse’s only defense was that the EP screwed up, you can’t represent both parties in that scenario,” Keris explains.
If both parties already shared privileged information, “you now have to bow out for both parties. The attorney has to get out completely,” Keris adds. Two new attorneys have to be assigned to the case. In an ideal world, this is a situation that is avoided, since the two new lawyers have to get up to speed on the case and perform duplicative work. “It doesn’t happen that often, but sometimes it does,” Keris says. “The timing of the privilege disclosures determines if you can stay in the case.”
Many ED malpractice claims include multiple defendants. Each defendant has unique (and sometimes competing) interests.
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