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Normally most attorneys, when analyzing their potential malpractice cases, just look at clinical violations in the application standard of care and if they are causally related to a bad outcome.  What many fail to realize is that there are two other potential causes of actions that also should always be analyzed in each of their cases. The first is the Emergency Medicine Treatment and Active Labor Act (EMTALA), or the anti-dumping act, and the second is HMO or Medical Insurance Bad Faith.

EMTALA is a federal law requiring each patient to have a medical screening exam to determine if they have an emergency medical condition and to stabilize the patient prior to transferring, admitting or discharging the patient from the Emergency Department regardless of the insurance status of the patient.If an attorney decides to file a federal EMTALA claim, the federal rules of evidence permit the plaintiff attorney access to the usually off limit peer review material which then may be used in the State medical malpractice action. If the case went under hospital peer review, the federal EMTALA action will allow a plaintiff attorney to see and introduce into evidence the peer review information in their State malpractice action, which was obtained in federal court.

Bad faith issues relate to system troubles (denials or delays in medically vital care or benefit determinations, credentialing issues, unacceptable) by HMOs, medical insurance companies or medical groups (IPAs) they contract with. If a patient does not receive timely medical care or that care was restricted or substandard in any manner by the “system, then a plaintiff attorney could file a bad faith case which could result in punitive damages.  Credentialing issues may also be involved in bad faith actions.For instance, if the HMO or IPA performed second-rate credentialing and then the provider committed negligence, the plaintiff attorney could allege that the breach was likely and expected and hold the system accountable.System malfunctions may occur in various direct and indirect ways such as inadequate credentialing of the hospital, physicians or emergency department that patients are directed to. It may occur when health care plans encourage their beneficiaries, i.e. patients to call their help/nursing/information line prior to seeking medical care. These information lines are fraught with danger, essentially having nurses without knowing or seeing the patient making medical diagnoses over the phone and directing treatment.

Both Plaintiff and Defense Attorneys need to analyze any contracts that hospitals may have with the HMOs, Medical Insurance Companies or their medical groups (IPAs) to see if there are financial incentives that corrupt medical decision making or in the credentialing process of health care providers.

In filing a bad faith case both defense and plaintiff attorneys must know if it was ERISA pre-empted. If there is ERISA pre-emption then one can file a malpractice lawsuit against the HMO, IPA or medical insurance company based not on a health care plan violation or a benefit denial, but based on the plan providing deficient quality of care. In this manner there may not be MICRA restrictions on damages and the case is not sent to federal court.

Both Plaintiff and Defense Attorneys need to investigate any contracts that hospitals may have with the HMOs, Medical Insurance Companies or their medical groups (IPAs) to see if there are financial bonuses that damage medical decision-making or in the credentialing process of health care providers.

The author of this article is a Medical Malpractice Expert Witness. View his and other Medical Expert Witnesses’ full CVs at this Expert Witness Services Company.

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Emergency physicians occupy a unique role in the health care system.They make available emergency care for those critically ill and injured while also giving periodic care for a wide variety of patients with less serious problems.Some controversy lingers regarding the definition of primary care as it applies to emergency medicine, but most of our practice consists of patients with whom we do not share an ongoing physician-patient relationship.  Emergency department care is delivered to multiple patients simultaneously.  Smaller emergency departments may see 20 patients per day while staffed with a single physician.  Larger emergency departments may be staffed with dozens of physicians and see over 300 patients per day.  The environment can be stressful and chaotic.  Despite these challenges plus frequent understaffing, critical and life-saving decisions must be made each day.These evaluations must be made with the narrow amount of information that is obtainable at the time.  A focused history and physical exam is performed in conjunction with appropriate but limited laboratory and radiographic testing.  Review of prior medical records, when available, is crucial.  A differential diagnosis is generated and further refined to a tentative diagnosis and an appropriate disposition.

Given all these variables, the definition of standard of care as it applies to emergency medicine is a real challenge.  It is simply not possible to reach a correct diagnosis for each patient.  The patient may not be able to give an accurate history and family may be unavailable.  Physical exam skills are important to gather useful clues.  Labs and radiographs must be interpreted accurately, sometimes without available radiologists, but may be non-specific or even confusing.The clinical representation often unfolds one piece at a time much like a puzzle, with the diagnosis not clear until adequate pieces of information have been obtained and assembled correctly.  It is frequently easier the next day to realize the correct diagnosis with the benefit of time, more testing, and response to interventions.  This is what we call “retrospective” medicine. 

The first question which must be answered in determining malpractice is whether negligence has occurred.  This requires a thorough understanding of the standards of care in emergency medicine and the realities of emergency department care.  Negligence is more complex than a simple missed diagnosis.  One must ask what a reasonable emergency physician would do given the clinical presentation at the time of the patient arrival in the emergency department.  It is crucial not to be biased by the subsequent events and additional information which may become available.  Even without a definitive diagnosis, it is imperative that emergency physicians identify those patients with a significant likelihood of serious illness leading to potential morbidity or mortality.  These patients simply cannot be discharged and must be admitted for close observation and further testing.  This rule is best applied to patients with chest pain presenting to the emergency department as it is very difficult, if not impossible, to accurately risk stratify these patients upon initial presentation.

How are standards of care in emergency medicine determined? These standards of care are determined from multiple sources and evolve over time as health care and technology changes.  An emergency physician must possess a knowledge base which is extensive and encompasses a subset of all specialties.  One must be familiar with those aspects of medicine, surgery, obstetrics, gynecology, and pediatrics which may cause a patient to present to the emergency department.This is quite different from an office-based practice because it is unscheduled and erratic.  Standards of care do not arise from a single textbook.  Although textbooks are a great source of information, they tend to be collaborative with hundreds of chapters, each written by a different author and often years out of date by the time they are printed.  Research is critical in that studying the emergency medicine literature provides a sense of the current body of knowledge and the future trends in diagnosis and management.  Participation in research and the writing of scholarly articles and textbooks provides the physician with expertise in focused areas.  In addition, national or regional meetings and academic societies provide a forum where controversial issues are discussed and state-of-the-art research is first presented.  This collaborative type of discussion, which frequently involves speakers outside the specialty of emergency medicine, contrasts to the simple, factual and didactic information transfer which occurs from reading a textbook.

Summing up, basic practicing of emergency medicine is not sufficient to qualify one as an expert witness.  A comprehensive knowledge base is best obtained by completion of a certified residency training program in emergency medicine.  Residency training not only teaches the body of knowledge which must be mastered but also provides much more.  Medicolegal issues, information systems, physician-patient communication, and administrative topics provide a framework to be a successful emergency physician.  Practicing emergency medicine in a large, high volume emergency department is essential to experience a wide breadth of pathology (especially pediatrics and trauma) yet remain conscious of the limitations experienced in smaller departments with less specialty backup.A commitment to teaching provides a persistent check of the literature and an enduring discussion of evolving management strategies.  Teaching hospitals provide an important venue where standards of care are analyzed and criticized on a daily basis both at the bedside and in the classroom.  Case management conferences, where patient management is discussed retrospectively by a group of physicians, provide an opportunity to experience different management options and see the variation in practice styles. 

It may seem obvious but an occasionally overlooked issue is that emergency physicians must be judged by their peers.  The emergency department is a “fishbowl” where we provide care and then transfer that care to another physician who usually knows the patient better than we do.  Plaintiff attorneys will try to belittle the specialty of emergency medicine and claim that we are not experts in anything but defer to their medicine and surgical experts.  These experts confine their practice to a limited type of patient and see patients individually in their offices, not in a chaotic emergency department.  Only a qualified emergency physician can truly determine a deviation from the standard of care in emergency medicine.  It is a unique skill to sort out a large number of undifferentiated patients presenting to an emergency department with often perplexing complaints and limited ability to communicate.  Evaluating this care can only be done by someone who shares the same experiences.

The author of this artical is an Emergency Medicine Expert Witness and can be found at this expert witnesses services company. View other legal medical expert witnesses and their full C.V.’s

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The following recommendations are not intended to be an exhaustive list in selecting a medical expert but are intended to provide a basis upon which to formulate a plan for an effective screening process. Because medical expert witnesses are quite expensive, the careful practitioner must be diligent in efforts to procure an expert to achieve the greatest benefit for his/her client.

The initial and make-or-break step in properly screening your expert is carrying out a top-notch review of your case. An attorney should know his/her case before enlisting the services of a medical expert. A thorough review of the case includes analyzing client’s medical records, including current medical care and physical challenges, as well as previous medical treatments and pre-existing conditions. Additionally, a careful practitioner will want to know if his/her client has ever pursued malpractice claims in the past and their outcomes as well as whether the client has sought legal representation in the present case from someone else. If the client has sought legal representation from another attorney, the likelihood that the case has already been sent out for a medical review is great. Looking at the case histories can let an attorney know in advance that a case is not a good one, saving many hours. A thorough screening of a case should focus the attorney in on which doctor(s) are likely responsible for the client’s current condition and therefore what area of medical expertise the expert(s) should be qualified in. Once a thorough screening has taken place, the next consideration is locating an expert witness and screening him/her to assess whether he/she is the right expert for the case.

The first rule of thumb is to remember you are the attorney and the responsibility for properly screening the expert(s) is yours. Even if you are using a referral service, don’t assume that the referral service has performed a background check on your doctor. Approaching the selection of an expert with this mindset will prepare you to ask the right questions and lead you to follow up on the expert(s) credentials.

Any expert, as part of the screening process, should be willing to provide a copy of his/her CV, fee schedule and an initial phone screening at no cost. Do the best you can with what services are provided for free. When you carefully review your expert’s CV and fee schedule, you are able to weed out, very early on, experts that are not appropriate for your case. If after reviewing the expert’s CV and fee schedule, you are still interested in his or her service, arrange for a phone screening and prepare for the conversation. A phone screening (always free) will be the best opportunity for you to see if the expert is a fit for your case. In order to assess the compatibility of the expert with your case, have your end of the conversation with the potential expert planned out ahead of time. Doctors and physicians are usually quite busy and if they are doing the phone screening for free, they want to be as time efficient as possible.

Points of discussion with the medical expert should include a brief summation of your case including a description of the procedure(s) performed by the doctor whose treatment is in question and the problems suffered by your client. After providing a brief summation of your case as described above, ask the expert if he/she is comfortable in taking on a case in this particular area. If the CV did not clearly articulate the experts credentials in the specific medical area you need, ask him/her what training, experience and/or education he/she has in the specific area applicable to your case. Most importantly, has he/she performed the procedure that is in question or if a procedure was performed that is not accepted practice, has he/she treated patients that presented with symptoms the same or similar to your client. Use the free phone screening to assess the personality of the expert as well. If the expert does not connect with you, there is a great chance he/she won’t connect with the jury either. Also important: if your case is a Plaintiff’s case, you have to be certain that the expert is fine with testifying against another physician in the same field.

During the initial phone screening, you will also want to ask the expert how many times he/she has testified in court and what is the ratio of Defendant cases verse Plaintiff cases. If your expert has only testified for your side of the case, this may have a negative impact on the jury. Also, what was the result of each of the cases in which the expert testified? If the expert is on the losing side on most cases, what basis do you have to assumet a different result in your client’s case? Additionally, has the expert been sued for malpractice? If so, when, how many times, and what was the outcome of the case(s)? Few things are more damaging to your client’s case than putting on an expert who has been found negligent in his/her own practice of medicine.

In most cases, when you use a referral service, the CV on the website does not display the expert’s name. If this is the case, upon completion of the phone screening, be sure to verify the status of the license(s) reported by the expert with the Medical Board from each of the respective states. If the expert’s name is on the initial CV, verify the status of the license(s) before planning the phone screening.

When you have done all of the above and asked the right questions and sought out case-specific information, you can make your decision. Good Luck!

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Edward A. Merrill is a licensed attorney who has utilized the services of Consolidated Consultants Co.

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