When Can ED Patients Sue for Wrongful Death?
An ED physician, like any health care provider, can be sued for wrongful death whenever there is evidence that medical malpractice has caused a patient's death. A case generally will not be successful where there is no good evidence of medical malpractice, or where there is significant evidence that the patient caused or contributed to the death, says Andrew Slutkin, an attorney with Silverman Thompson Slutkin & White in Baltimore, MD.
While each state's law is different, Slutkin says the term "wrongful death" generally refers to a claim for negligence brought by the surviving immediate family members of the deceasedthe parents, spouse, and children.
Damages Computed
In a wrongful death claim, the immediate surviving family members assert that negligence has caused them to suffer mental anguish over losing their family member, and economic losses as a result of the death of their loved one, such as lost income and lost household services.
"A wrongful death claim usually is brought along with a claim by the estate of the deceased," says Slutkin. This is called a "survivor action" because the claim survives the deceased's death, for the pain, suffering, and mental anguish of the deceased from the time of the negligence until the time of death.
Justin S. Greenfelder, JD, a health care attorney with Buckingham, Doolittle & Burroughs in Canton, OH, says that each state has enacted a particular statutory scheme with regard to wrongful death claims. Ohio's wrongful death statute permits the personal representative of a decedent to bring a legal action for the benefit of the decedent's beneficiaries for damages resulting from a tortious injury that caused the decedent's death.
Elements of damages include loss of consortium, loss of society, loss of services, loss of prospective inheritance, and mental anguish by the next of kin. "This is distinct from a 'survival' action, which is brought by the decedent's personal representative on behalf of the decedent for injuries suffered during the decedent's life," says Greenfelder.
Damages on the survival claim are measured by the extent of the physical and emotional injury suffered by the decedent before he or she died. "These claims are often joined together in a single lawsuit," says Greenfelder.
For a wrongful death claim against the ED to be successful, the plaintiffin this case, the decedent's personal representativemust prove that the ED physician breached the standard of care, and that the breach was a proximate cause of the decedent's death.
"There are several permutations that courts have created over the years, one being a 'loss of chance,'" says Greenfelder.
Normally, the plaintiff must prove that the decedent would have survived an appreciable period of time but for the negligent treatment. However, in a loss of chance case in Ohio, if a decedent had less than a 50% chance of survival, a plaintiff may still prevail if he or she can prove that the decedent lost that chance of survival as a proximate result of the negligent treatment.
"A jury's damage award is multiplied by the percentage of chance lost to determine the amount of damages properly awardable," says Greenfelder.
Large Settlement
Greenfelder says that a wrongful death case against the ED would not be successful if the plaintiff fails to prove that the physician breached the standard of care, or if the plaintiff fails to prove that any breach was not a proximate cause of the decedent's death.
In many cases, the defense will argue that the circumstances that caused the decedent's death were not foreseeable or were unavoidable. "That is, no matter what the physician did, the patient would not have survived," says Greenfelder.
Greenfelder recalls a case involving a patient who previously had been diagnosed with cancer but was in remission, who came to the ED for a severe sinus infection. A head CT was ordered, which the ED physician read as clear, and discharged the patient.
The next morning, the radiologist read the CT and noticed an artifact that should be checked out further. He sent his report to the ED physician, but the physician never notified the patient. Several months later, the patient had another CT scan which showed a much larger artifact that was determined to be a tumor.
"The plaintiff presented expert testimony that it was too late to save her at that point, but if she had been informed of the results of the earlier CT scan, she would have had a better than even chance of survival," says Greenfelder. "That case resulted in a large settlement by the ED physician and the hospital."
To avoid wrongful death cases, Slutkin recommends these practices:
- Strive to meet the standard of care.
- When there is a death that is unexpected, contact the risk management department. After speaking with risk managers, clearly document facts and circumstances that indicate that the person was sick and was treated properly.
- Document any evidence that the patient was not compliant, or accepted risks of a procedure.
Greenfelder says when a death is involved, a physician's final notes summarizing treatment become very important. Physicians and nurses should accurately chart the course of treatments.
"The accuracy of the medical record is of the utmost importance in a death case, because the decedent is not around to tell their story by giving a deposition," says Greenfelder. "It is to the medical provider's benefit that the record be well-kept and accurate."
Nursing notes should be clear, and medication records must be accurate. Physicians and nurses must resist the temptation to make changes to the record after a lawsuit has been filed.
"This can lead to potentially very serious repercussions that go beyond simply being held liable for causing a patient's death," says Greenfelder. "Licenses would potentially be in jeopardy."
Sources
For more information, contact:
Justin S. Greenfelder, JD, Buckingham, Doolittle & Burroughs, Canton, OH. Phone: (330) 491-5230. Fax: (330) 252-5520. E-mail: [email protected]
Andrew G. Slutkin, Silverman Thompson Slutkin & White, Baltimore, MD. Phone: (410) 385-2786. Fax: (410) 547-2432. E-mail: [email protected]. Web: www.MdAttorney.com.
An ED physician, like any health care provider, can be sued for wrongful death whenever there is evidence that medical malpractice has caused a patient's death.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
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