Given the soaring stress levels and high stakes of medical malpractice litigation, it’s probably not uncommon for an emergency physician (EP) defendant to have a fleeting thought of giving incorrect information during the discovery process. Doing so will quickly backfire, warns Amy E. Goganian, JD, an attorney with Goganian & Associates in Needham, MA.
"It is a bad idea to say something that is misleading or inaccurate during discovery, whether through deposition testimony, or interrogatories," she says. "You are arguably committing perjury — although it’s tough to prove, the argument can certainly be made."
If the plaintiff attorney is able to show that the EP was untruthful in any way, the EP’s credibility is "destroyed," says Goganian. "Nobody wants to be in the position of defending that, because you can’t defend it."
Adequate preparation is the key to an EP defendant being an effective witness, she adds. "Don’t guess and don’t speculate," she says. "If you do not know or do not recall the answer to the question, that is the appropriate response."
Goganian is aware of one case in which an EP claimed in a deposition that he consulted with a specialist about the need for imaging, and that the specialist said it wasn’t required. "There was no note of the consult. The specialist the EP allegedly consulted with was deposed and had no memory of ever providing the consult," she says. The case, which was otherwise defensible, was settled.
In another recent malpractice case, a 3-year-old presented with a high fever and appeared to be septic. The EP transferred the child to a pediatric hospital. "The child turned out to have leukemia, which had been missed in the primary care physician’s office," says Bruce Wapen, MD, an emergency physician with Mills-Peninsula Emergency Medical Associates in Burlingame, CA. "Tragically, the child died."
The EP’s medical intervention was criticized as being too slow and inappropriate for the management of sepsis. However, sepsis was never confirmed, nor was it ever proven to be the cause of the child’s demise.
The EP’s care was defensible, according to Wapen, who served as an expert witness for the defense. During the deposition, however, the plaintiff’s attorney asked the question, "Have you ever been investigated by a state medical board?" To which the EP responded "no."
"But the plaintiff’s counsel had done their research," says Wapen. The EP was confronted with evidence showing that decades earlier, he had been investigated and disciplined by a state medical board for substance abuse, which the EP then admitted to. "That cost him the case," says Wapen. Once it was confirmed that the EP had lied under oath at the deposition, the defense attorney felt that the case was no longer defensible.
"The case settled for an undisclosed amount," says Wapen. "The lesson here is that a witness may not lie; for if one does, the credibility of that witness is destroyed."
Another EP claimed during his deposition to have examined a patient at triage. "But the entire triage time was captured on video. It showed that he clearly had not examined the patient, as he had not set foot in the area where the patient was," says Marc E. Levsky, MD, an EP at Seton Medical Center in Daly City, CA. Levsky is a board member of the Walnut Creek, CA-based The Mutual Risk Retention Group and a fellow at PIAA, a Rockville, MD-based insurance trade association.
This created a very serious problem for the defense. "The EP was forced to settle what was thought to be a case where he would have otherwise been dismissed from the suit," says Levsky.
- Amy E. Goganian, JD, Goganian & Associates, Needham, MA. Phone: (781) 433-9812. Fax: (781) 433-9818. E-mail: [email protected].
- Marc E. Levsky, MD, The Mutual Risk Retention Group, Walnut Creek, CA. Phone: (925) 949-0100. Fax: (925) 262-1763. E-mail: [email protected].
- Bruce Wapen, MD, Foster City, CA. Phone: (650) 577-8635. Fax: (650) 577-0191. E-mail: [email protected].
