What to do when a plaintiff's attorney calls by Erik DeLue, MD, MBA
Published in the August 2010 issue of Today's Hospitalist
I recently received a call from a plaintiff's attorney asking for my expertise in a case that involved a hospitalist.
The story went something like this (I've made things exceedingly vague for obvious reasons): A previously healthy individual underwent elective surgery. Immediately after the surgery, the patient developed a serious complication as a direct result of surgical error.
The operating surgeon requested emergent postoperative consultation from a medical subspecialist and a hospitalist. The hospitalist was consulted for "medical management," the medical subspecialist for consultative expertise regarding the complication. That medical subspecialist recommended
We may be wise to always specify the limited consult for which we are brought in to provide care.
supportive care while the hospitalist ensured that the patient's hypertension was controlled and initiated DVT prophylaxis.
A shotgun suit
On post-disaster day 4, another surgical subspecialist was consulted. This surgeon later opined in a sworn affidavit that failure to consult him immediately postoperatively likely resulted in a worse outcome for the patient. When I was contacted, the plaintiff's attorney was about to file a lawsuit against all three physicians, including our friend the hospitalist, and was seeking another hospitalist's expert opinion to fortify his case.
The phone call brought up many interesting questions relevant to our practice. To start, let's look at the legal side of the equation. For medical malpractice to occur, there must exist duty, breach of duty, proximate causation and damages. Whether there is "duty" turns on a discussion, often by dueling medical experts, of what is the appropriate standard of care owed to the specific patient.
To establish breach, the plaintiff's patient must show that this standard of care was not followed. Further, injury must be proximately caused by or arise out of the specific failure to follow the proscribed standard of care.
How do we define "duty"?
I'm just going to focus on the question of duty (standard of care) because a discussion of all the other factors would require exploring the specific details of the case.
How we define duty in a new field such as hospitalist medicine can be nebulous and vexing. This is particularly true when you consider how much practice variability exists among programs—especially when it comes to medical comanagement.
The attorney's case hinged on the argument that the hospitalist had some degree of duty to immediately seek the surgical subspecialist's advice. (Again, we are assuming that doing so would have altered the outcome.) A very dubious argument, this, when you consider that a medical subspecialist had already rendered his opinion that another surgical consult was not needed, and the hospitalist was on board only to manage the patient's blood pressure.
A moving target
The bigger question is whether or not there is ever a limit to our duty once we have joined a case. Given lawyers' tendency to use the shotgun approach when naming doctors to a suit, the practical answer is that there may be no limit once a hospitalist's name finds its way into a chart.
Nonetheless, it is extremely important to come up with a clear definition of our scope of practice and make an effort to not overstep those boundaries to establish our legal culpability in such a case. We may be wise to always specify the limited consult for which we are brought in to provide care. Maybe I will sell rubber disclaimer stamps to my brethren to affirmatively exclude care for any and all other issues, except for the stated consult.
It seems that the outcome of future litigation against hospitalists will revolve around how our scope of practice is defined, given the fact that ours is a field in which we don't yet have a substantial case history. So who should come up with that definition? Apparently, yours truly is as qualified as the next person. Trust me, I don't find that any more comforting than you do.
Testifying against each other
Another, equally important question generated by my dialogue with the attorney: Is it ever OK to testify for a plaintiff against another hospitalist (or, for the sake of argument, for the defense on behalf of another hospitalist)?
It turns out that our legal system is somewhat unique in the use of "expert" witnesses, a legal conundrum that was deftly examined in an article in the Aug. 11, 2008, New York Times. To summarize, and this will come as a surprise to no one, it is an accepted fact in legal circles that expert witnesses find a way to justify their expensive opinions.
The key quote from the article, which may resolve the age-old "to testify or not to testify" question, reads as follows: " 'To put it bluntly … service as an expert witness is not considered honest work,' Samuel R. Gross, a law professor at the University of Michigan, wrote in the Wisconsin Law Review. 'The contempt of lawyers and judges for experts is famous. They regularly describe expert witnesses as prostitutes.' "
I don't know if the hospitalist in question was ultimately named in the suit. As a fellow hospitalist, a previous defendant (I was cleared, not to worry!) and a doctor frustrated by the lack of meaningful tort reform, I sure hope he or she was not.
However, I expect the opposite was probably true, especially if the plaintiff found a hospitalist "expert" willing to make the attorney's case. Needless to say, I did not offer my "expertise," for which I would have been compensated. As they say, dignity is priceless.
Erik DeLue, MD, MBA, is medical director of the hospitalist program at Virtua Memorial in Mt. Holly, N.J. Check out Dr. DeLue's blog and others on the Today's Hospitalist Web site.