Sued EP May Wait to Learn What Opposing Experts Say
Sued EP May Wait to Learn What Opposing Experts Say
At what point after a lawsuit alleging ED malpractice is filed will a sued EP learn what the opposing experts say about the case? This depends on the legal strategy being used by the plaintiff's attorneys and state laws, says Jonnathan Busko, MD, an EP at Eastern Maine Medical Center in Bangor and medical director of Maine EMS Region IV.
"Some states want the expert opinion written down in letter form, and as soon as it's written, typically it becomes discoverable," he says. "In others, it can remain at a conversational level until the deposition is taken."
There are advantages and disadvantages to the EP's defense with each approach. "The big advantage to having something written is that oftentimes it's clearer to the attorney what the witness is thinking," says Busko. "The flip side is it's much easier for the opposing witness to say 'I disagree. This does not reflect the standard of care' by having more time to prepare."
The advantage of waiting until the deposition to divulge the expert's position is that the opposing attorney lacks the opportunity to fully address any issues that come up during the deposition. "The downside is, it can be a real surprise for the attorney when they actually hear the opinion articulated and realize it's not what they expect," Busko says.
In some cases, there may be previous medical records available that weren't reviewed by the plaintiff's expert. If experts review only the events around whatever the suit is about, they may incorrectly establish a connection between the bad outcome and whatever happened in the ED encounter.
They may fail to identify that the patient had a history of similar events happening, or a major health issue that would have clearly led to this type of event occurring, says Busko.
"The other area with a lot of shades of gray involves what the expectations for an outcome are. We particularly see these in cardiac arrests," says Busko.
A defense expert may point out to the attorney, for instance, that the patient's chart indicates that ED staff interrupted chest compressions for 70% of the time, which indicates that the compressions were only done 30% of the time. "Clearly, that is not going to lead to a good outcome," says Busko. "The other expert may say, 'They did everything they needed to do, they gave chest compressions.' You can pull out [American Heart Association] guidelines and say, 'Look at this. They didn't do the most important thing correctly. They did it wrong.'"
Some states require a plaintiff's attorney to have a certificate of merit signed by a physician, stating that the case has been reviewed and has merit. "Sometimes the defense attorney thinks it's advantageous to do an early interview of the plaintiff's certifying expert to see if he backs away from his opinion or is not qualified," says Michael M. Wilson, MD, JD, a health care attorney with Michael M. Wilson & Associates in Washington, DC.
In most, but not all cases, the attorney would be allowed to substitute an unqualified expert with another expert, adds Wilson, so it doesn't necessarily mean the end of the case.
"In other jurisdictions, you don't find out who the experts are until much later down the road," Wilson says. "But the defense attorney doesn't just sit around waiting for the plaintiff's attorney to tell them whether it's a good case or not."
The defense will have the case reviewed as early as possible, to learn the strengths and weaknesses of the case. If the case appears very strong and settlement is likely, says Wilson, the defense attorney may offer to discuss the case and ask to be sent the plaintiff experts' comments on the case.
The plaintiff's attorney will determine if there is sufficient interest in settling the case to make it worthwhile to send these expert statements or not, says Wilson. Discussions with the defense attorney may have convinced the plaintiff's attorney that there is a good faith interest in settling the case at an early stage.
"On the other hand, the plaintiff may prefer to hold onto the facts as long as possible," says Wilson. "Otherwise, the defense attorney can shape their own witness testimony to respond to the plaintiff's argument."
At what point after a lawsuit alleging ED malpractice is filed will a sued EP learn what the opposing experts say about the case? This depends on the legal strategy being used by the plaintiff's attorneys and state laws, says Jonnathan Busko, MD, an EP at Eastern Maine Medical Center in Bangor and medical director of Maine EMS Region IV.Subscribe Now for Access
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