Nine Costly Mistakes Plaintiff Attorneys Make
With Emergency Medicine Malpractice Cases

by Burton Bentley II, M.D., FAAEM

Lawsuits against emergency physicians are skyrocketing, and the cost of litigating these actions continues to rise dramatically. Vast amounts of time and money are lost when you pursue a non-meritorious case or when you litigate a worthy case inefficiently. Beware of the following costly errors:

MISTAKE #1: FAILING TO THOROUGHLY ANALYZE A CASE BEFORE ACCEPTING IT.
Patient visits in the emergency department are generally brief and the resulting medical records are limited. This lack of data is deceptive and will lead you down a costly path when you pursue a non-meritorious case. The essential key is a meticulous analysis of duty, breach, harm, and causation so that you can determine the worthiness of your case. This review is best performed by an impartial, non-testifying expert who has no financial incentive to over-state the merit of your case. Equally as important, the reports of non-testifying experts provide valuable data that may be protected as part of your work-product. If the case is deemed preliminarily meritorious, then a separate, testifying expert should be appointed.

MISTAKE #2: FAILING TO UTILIZE AN EXPERT WHO IS A BOARD-CERTIFIED, PRACTICING, FULL-TIME EMERGENCY PHYSICIAN.
Emergency medicine is a unique, board-certified specialty. Emergency physicians are trained to perform a broad range of highly specialized procedures on critically ill patients. Consequently, the standard of care must be specifically defined within that context. Utilizing a non-emergency physician to challenge the standard of care in the emergency department could prove fatal to your case. These outside “experts” often fail to understand the complexities, time constraints, and specific protocols that are distinct to the emergency encounter. They also may be inexperienced in the specific areas that they are asked to review. This lack of an exact parallel makes for incredible and inaccurate testimony that is easily impeached. A board-certified, actively practicing emergency physician is the only physician whom you should employ to define the standard of care. These experts bear the credential Diplomate of the American Board of Emergency Medicine.

MISTAKE #3: FAILING TO MASTER ALL OF THE RELEVANT MEDICAL FACTS AND TERMS.
Cases from the emergency department span the breadth of medicine and science. It is critical for you to have a thorough working knowledge of all medical facts and terminology that pertain to your case. This expertise translates into comfort and confidence that strengthens your role and provides a competitive edge. Although medical terminology may be found in any book, having your expert prepare a report with customized, case-specific explanations is a timesaving and vital requirement.

MISTAKE #4: FAILING TO AGGRESSIVELY PREPARE FOR THE EXAMINATION OF WITNESSES AND PARTIES AT DEPOSITION AND TRIAL.
Non-testifying experts are an invaluable resource during your preparation for trial. With their reports and analyses protected by work-product rules, they are free to assist you in all aspects of the case. Once they have thoroughly reviewed the facts, a non-testifying expert is an excellent source of probing and pivotal questions for you to use in deposition and trial. Not only do they understand the medical subtleties of the case, they also can often anticipate technical arguments and rebuttals. A well-planned and executed interrogation fortifies your case from the outset.

MISTAKE #5: FAILING TO HAVE THE CASE INDEPENDENTLY AND OBJECTIVELY REVIEWED BY A NON-TESTIFYING EXPERT.
Many attorneys choose to have cases reviewed by advertised experts who are “guaranteed to testify.” This approach may prove costly if the expert is unable to remain unbiased because of the financial incentive to proceed with testimony. These “experts” may be excessively enthusiastic about a case despite the fact that it lacks objective merit. The most cost-effective approach is for you to utilize a non-testifying expert to perform an initial analysis and report. If litigation is justified, then a separate, testifying expert should be chosen.

MISTAKE #6: FAILING TO ANALYZE EVERY REFERENCE ARTICLE OR SOURCE CITED BY THE OPPOSING EXPERT.
Expert witnesses frequently misquote the very literature that they cite. You may miss opportunities in the examination of these witnesses when their errors go unchallenged. It is crucial for you to have all citations carefully reviewed with respect to the case.

MISTAKE #7: FAILING TO PROPERLY INTERPRET AND UTILIZE KEY DATA FROM THE EMERGENCY DEPARTMENT RECORD.
As in all areas of medicine, records from the emergency department are unique. Without a full understanding of their organization, you may miss critical points. For example, you may find important discrepancies when cross-checking the triage assessment with the nursing notes and the physician’s record. Similarly, the physician’s handwritten notes may be different from his or her transcribed report. Other specialized markings and abbreviations may also be central to your case. An experienced, board-certified emergency physician will prove indispensable to you for this review.

MISTAKE #8: FAILING TO RECOGNIZE AUTOMATED EMERGENCY DEPARTMENT DICTATIONS.
Although automated medical dictation and transcription systems are in their infancy, their use in the emergency department has become more common. These systems utilize a transcription program to convert a physician’s spoken report into a typed medical record. Despite their convenience, the reports these systems generate may not accurately reflect the clinical encounter. This occurs when the physician employs a “template” which is a set of standardized default statements that are entered into the medical record. Although the record appears complete, close scrutiny may reveal that the statements are inaccurate or inapplicable. Once this occurs, you are free to call the credibility of the physician and the medical record into question. An experienced emergency medicine specialist is familiar with these systems and will identify crucial discrepancies that will strengthen your case.

MISTAKE #9: FAILING TO RECOGNIZE ERRORS MADE DURING THE “CHANGE OF SHIFT.”
Unlike other medical specialties, emergency physicians work in time-specific shifts. When a shift is over, patients are often transferred to the next physician on duty. It is well known that errors in patient management commonly occur during this time, and that documentation of the transfer of care may be lacking. All parties who participated in the patient’s care should be identified early in the case so that you can explore their role in causation. Time and money are wasted when you direct your efforts toward the wrong party.

WHAT’S THE NEXT STEP?
Contact us today for an initial consultation regarding your case.

Copyright 2003 by Burton Bentley II, M.D.
Provided as an educational service by Emergency Medicine Litigation Analysts, Inc.
If you have questions, you are invited to contact Dr. Bentley toll free at 1-888-335-EMLA (3652), or on the Internet at www.ERexperts.com