Avoiding Common Errors in the Emergency Department - Book 2

PGY1 EM residents require direct supervision by EM faculty as
dictated by ACGME standards.
Adequate senior EM resident supervision allows more flexibility for
the faculty oversite yet critical patient evaluation and procedures still
require direct face-to-face supervision.
The autonomy and scope of practice appears greater in rural ED
settings for APPs due to the lack of EM board-certified physicians.
Open communication is essential between attending physician and
resident or APP for effective and safe patient care and supervision.

SUGGESTED READINGS

Accreditation Council for Graduate Medical Education. ACGME Common
Program Requirements. Revised September 28, 2014, effective July 1, 2015.

Blum AB, Shea S, et al. Implementing the 2009 Institute of Medicine
Recommendations on Resident Physician Work Hours, Supervision, and Safety.
Available at: http://www.ncbi.nlm.nih.gov. 2011.

Hooker RS, Klocko DJ, Larkin GL. Physician assistants in emergency medicine:
The impact of their role. Acad Emerg Med. 2011;18(1):72–77.

Sawyer BT, Ginde AA. Scope of practice and autonomy of physician assistants in
rural versus urban emergency departments. Acad Emerg Med.
2014;21(5):520–525.

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362

WHAT TO DO WITH SO MANY?
STRATEGIES FOR REDUCING
EMERGENCY DEPARTMENT
OVERCROWDING

RYAN BROOKS, MBA AND ARJUN CHANMUGAM, MD,
MBA

Possessing the ability to anticipate emergency department (ED)
overcrowding is one of the most valuable and cost-effective strategies an
organization can employ. Historical demand for emergency services can be
analyzed to provide a sense for when to expect peak patient arrivals.
Tracking arrival patterns by day of the week and hour of the day allows
leadership to adjust staffing patterns to better match the demand for their
services. Arrival patterns are the most basic element of EDs that needs to be
understood. Secondary to arrival patterns are a better understanding of the
occupancy levels on inpatient and observation units. Ideally, the highest
arrival rates would match closely with when the hospital has the lowest
occupancy. Matching the supply of available inpatient beds with the demand
for these beds is the ultimate objective.

An example shown below uses conditional formatting to easily identify
when ED census is greatest. Using the data below, nursing directors may
decide to shift an additional RN into an afternoon shift as opposed to a lower
census morning shift. The data below also show when available inpatient and
observation beds are most needed. As arrival rates rise, having the ability to
offload patients from the ED is key to success. Having patients wait in an
overutilized ED while a bed becomes available only exacerbates the problem

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of ED overcrowding, impacts the patient experience, and can potentially
complicate patient and provider safety. Morbidity and mortality is adversely
affected when an ED patient is forced to wait hours for an appropriate
intensive care unit bed. Unfortunately, this scenario is becoming all too
common in EDs across the United States (Figure 362.1).

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Figure 362.1 Historical ED census data should be analyzed to align
staffing with demand for services. When possible, creating inpatient
capacity when the ED census is highest will improve throughput times
and patient safety.

EDs cannot wait until overcrowding has become a problem before it is
addressed at a hospital-wide level. Advanced planning is a must when
strategizing against overcrowding. Metrics that can determine when planning
must begin can be set by each organization. The most commonly used are
volume metrics including ED census and ED boarding rates (number of
patients awaiting an inpatient bed but remaining in the ED) and time-based

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metrics such as how long it takes for patients to be evaluated by a provider in
the ED or how long it takes for a patient to get a room in the ED.
Predetermined actions can be taken based on an ED census of that is patients
is 40% greater than the number of beds or when the time to provider metric
exceeds 90 minutes.

One of the most common factors leading to overcrowding is lack of
inpatient bed availability. By creating discharges earlier in the day, hospitals
may be better able to match the demand for inpatient beds (ED and OR
patients awaiting admission) with the supply of open and staffed beds. To
encourage such behavior, many hospitals are implementing daily fixed
discharge targets for each inpatient unit. An example of this strategy is
instructing inpatient units to discharge two patients each day by 10:00 am.
By doing so, the ED then has inpatient bed availability that reduces boarding
patients and ultimately creates room for incoming ED arrivals. To
accomplish this, a dedicated discharge team can help to enact safe,
appropriate discharges, ensuring that patients will do well in the ambulatory
setting. Some institutions are developing a new specialty clinic that will see
patients who were recently discharged from the hospital as they transition to
more traditional longitudinal care. Developing such transition clinics have
two functions: (1) ensure that inpatients have an appropriate discharge care
plan in an effort to efficiently transition them to ambulatory care and thereby
reduce hospital length of stay and (2) provide ED patients with options for
outpatient follow-up, including the multidisciplinary transition clinic.

Discharge lounges are often created to make it easier for inpatient units
to discharge patients earlier in the day. These lounges can be utilized by
patients who are otherwise ready to go home but are unable due to
transportation or other minor obstacles. Allowing these types of patients to
stay in a lounge area and not in a needed bed can be key to reducing ED
crowding. The most common barrier reason given for not creating a
discharge lounge is the impact to patient satisfaction. Yet few studies exist to
demonstrate the impact of well constructed, dedicated discharge lounges
outfitted with the appropriate services on the patient experience. Sadly many
hospitals neglect the serious impact of boarding instead of focusing on how
to better utilize inpatient beds especially with patients whose medical
interventions are complete and are only waiting for discharge.

If mandating discharges is unfeasible—or unpopular—in an
organization, an alternate strategy is to create a multidisciplinary (including
both clinical and nonclinical) approach to capacity planning. Morning bed
meetings can be scheduled each morning to plan for the day. Emergency
department managers and charge nurses connect with inpatient unit charge
nurses to determine where the greatest bed needs are. By starting with the

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current census on each unit and identifying how many patients can be
expected during the day (based on estimated historical data and what the ED
and OR is currently holding), hospitals can easily identify where beds are
most needed. These meetings should not just be focused on sharing
information, which is the first step. Developing a clear daily action plan with
accountability and shared responsibility for resolving issues is critical, but
often not done.

For example, a 30-bed unit with 28 current patients and 4 anticipated
admissions knows that to accommodate the needs of the ED requires two
patients to be discharged. Having all of the needed participants allows for
units to be specifically targeted for discharge help. Transport teams know
that units with high demand will be the priority. Pharmacy teams can begin
planning take-home medications for these patients. The key to success using
this strategy is eliminating as many barriers to discharge as possible. If it is
simply not feasible for discharges to be made to accommodate the needs—
other units are asked to step up and take these admissions if possible.

This strategy—aligning demand and capacity in real time—can be
extremely successful at a hospital level. However, this strategy can also be
taken and applied at a health system level as well (particularly when
hospitals within a health system are located in close proximity to each other).
If two hospitals within the same health system are serving the same area, it is
wise to understand in real time the available capacity and demand from each
of the respective hospitals. Many consider the ideal occupancy rate of
hospitals to be 85%. When hospital capacity reaches 85%, it becomes
increasingly more difficult to place patients in appropriate units, make
patient transfers to appropriate units and to cohort genders and certain
isolation patients.

When one of these hospitals surpasses the ideal occupancy rate (85%),
the sister organization should consider transferring ED boarding patients
(awaiting an inpatient bed) to the other hospital. Creating an additional step
of transferring the patient is a much smaller obstacle to overcome than trying
to create capacity by discharging patients earlier. If patient satisfaction is a
concern, patients can even be given the option to transfer if they would like.
A short ambulance transfer could put them in an inpatient bed much sooner
than if they choose to stay at a full hospital awaiting a bed. Many times the
patient will even appreciate the choice being offered to them—resulting in
greater patient satisfaction/experience scores regardless of what decision the
patient makes.

Another popular option to address ED overcrowding has been to create
or leverage access of preexisting clinics. Often times, organizations who are

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trying to reduce their ED overcrowding are at the same time trying to
increase the visit rates to their outpatient clinics. Outpatient clinics are a
great resource to many ED patients—many of whom could be seen in an
outpatient setting without worry. The key to making this strategy as
successful as possible is identifying the types of patients who would benefit
from such an offering as early as possible during their ED visit. Equally
important is to ensure that there is appropriate access and a means to
facilitate patient engagement with these clinics.

Following a medical screening exam, if it is determined that a patient
emergency does not exist, patients can be offered clinic appointments as an
alternative to ED care, but these appointments need to be 24 hours to 2
weeks depending on the patient condition and preference. Once patients have
been evaluated and informed that they are safe to wait for care for another 1
to 2 days, they often appreciate having a scheduled appointment that
conforms to their schedule and preferences.

Remember, ED visits are usually unplanned and stressful. Whenever
possible, offer patients a better experience that will also help to reduce
overcrowding.

ED overcrowding is a nationwide problem, and many forecast that ED
visits will only continue to rise. Deploying specific strategies at both a
hospital level and a health system level can greatly affect ED crowding, staff
morale, patient safety, and the patient experience.

KEY POINTS

Developing mechanisms, such as tracking arrival patterns to predict
ED census is a valuable strategy in managing potential ED
overcrowding situations.
Volume metrics including ED census and ED boarding rates (number
of patients awaiting an inpatient bed but remaining in the ED) and
time-based metrics such as how long it takes for patients to be
evaluated by a provider in the ED or how long it takes for a patient to
get a room in the ED can provide useful data to help with planning for
high census conditions.
Other strategies, including transferring to other hospitals, encouraging
more efficient inpatient discharge mechanisms, and utilizing
outpatient clinics more effectively are some strategies to improve
hospital capacity.

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SUGGESTED READINGS

Hernandez N, John D, Mitchell J. A reimagined discharge lounge as a way to an
efficient discharge process. BMJ Qual Improv Rep. 2014;3(1):u204930–w2080.

Kelen G, Peterson S, Pronovost P. In the name of patient safety, let’s burden the
emergency department more. Ann Emerg Med. 2016;67(6):737–740.
doi:10.1016/j.annemergmed.2015.11.031.

Patel P, Combs M, Vinson D. Reduction of admit wait times: the effect of a
leadership-based program. Acad Emerg Med. 2014;21:266–273.

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363

WHAT TO DO WHEN THE
REGISTERED LETTER ARRIVES

KEVIN M. KLAUER, DO, EJD, FACEP

Fear of the unknown is often the initial response of physicians when they
receive a notice of intent to sue. With respect to medical malpractice,
physicians are often like ostriches with their heads in the sand. There is such
an aversion to the legal process, that many physicians would prefer to avoid
the claims process altogether rather than prepare themselves by
understanding the process. This is a failed strategy. What you don’t know
can definitely hurt you. The best approach is being prepared. Sadly, a
common sense approach to understanding the complexities of the legal
system is simply not good enough because the process is not always logical.
Many physicians will get sued; understanding and employing the strategies
outlined in this chapter can help to better manage a very challenging and
stressful time.

The initial notification of a claim will likely come as a certified letter and
often times as a notice of intent to sue or a demand letter. Such notices
should outline the parties, the claim(s), and allegations, and if there is a
settlement demand, will include a summary of damages and the proposed
monetary settlement amount. However, your first notification may be that of
the claim and lawsuit, following its filing with the court.

There are three distinct areas to focus on, regarding receipt of a notice of
intent to sue, demand letter, or notification of being named as defendant in a
lawsuit: Timely response, privileged communication, and your health.

Although states vary in their rules and approach to civil procedure and
adjudicating allegations under the tort of negligence, there are guiding
principles that are broadly applicable and often useful. A response to the

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notice should be prompt. Understand that if the defendant is served with
notice of a lawsuit, a lack of timely response may result in summary
judgment for the plaintiff. There are too many horror stories of physicians
who have buried their head in the sand by filing away their notice in a desk
drawer. The physician defendant should notify their supervisor, insurance
carrier, and risk/claims management department immediately. Upon notice,
these entities should initiate development of a case file, a defense strategy,
and a proper legal response. It is never appropriate to respond on your own
behalf without legal advice. By all means, do not reach out to the plaintiff
(your former patient) without consultation and participation of your defense
counsel.

It is a common reaction for providers to want to discuss the details of the
case with colleagues to garner support and to validate their competency.
However, this can be risky. One of the first questions asked in a deposition
will be if you have discussed the case with anyone and if so, with whom?
Discussions with colleagues are usually not privileged. Although some
conversations may fall under a given state’s peer review protections, such
protections are variable and the extent of privilege is often vastly
overestimated. The strongest protection of privilege is the attorney–client
privilege. However, the protection afforded under this privilege is frequently
misunderstood. In short, these communications are protected by the
privilege, cannot be divulged by the attorney and are not discoverable. Yet,
the communication that is protected is only that which extends from legal
representation. Thus, talking to an attorney who is your family friend is not
privileged unless they are representing you in that specific matter. Simply
typing “attorney-client privilege” in an e-mail subject line does not
necessarily afford you protection. For instance, when you have copied others
on that e-mail that are not subject to that protection, a waiver of privilege
may occur.

Spousal privilege and clergy–penitent (e.g., bona fide clergy at the
discretion of the court’s determination) privilege do afford strong protection
and opportunity to safely discuss your case. Again, such communications
may be inadvertently waived if those parties speak to others or others who
are not subject to the privilege are included or overhear the disclosure(s).

Medical malpractice is simply daily business and frequently sport for the
plaintiff’s attorney. However, to physicians and other medical providers, this
is personal, which may lead to significant stress and mental health issues. It
is important to recognize that this process masquerades behind a cloak of
truth and justice. However, the attorney’s role is to gather and understand the
facts of the case and to support their client’s position to the best of their
ability. Their objectives do not include an imperative to find absolute truth in

1507

the matter.

Physician suicide is much greater than that of the general population,
40% greater in males and 130% greater in females, with medical malpractice,
litigation being one of the most common triggers. Litigation stress support is
critical. It is not a question that litigation causes stress. It’s a matter of the
extent of stress that it causes and how it will impact the individual
defendant(s). Support should be sought via mental health professionals, legal
counsel, spouse, and clergy, and such support should be ongoing. Waiting for
overt signs of depression, substance abuse, or dependence and other forms of
decompensation will only result in treatment delays and may result in
suicide. Although physicians are taught to be strong and function in isolation,
no one should be expected to navigate these uncharted and unfriendly waters
alone.

KEY POINTS

Make certain you report the notice to the appropriate persons
immediately upon receipt.
Establish defense counsel early to make certain you have
representation and preserve your rights and understand the protections
afforded to you.
Confide in those with whom you can have privileged communications
with.
Don’t let the filing of one case change how you care for thousands.
Bad outcomes do not always result from bad care.
Seek out litigation stress support. It is not a sign of weakness.

SUGGESTED READINGS

Bal BS. An introduction to medical malpractice in the United States. Clin Orthop
Relat Res. 2009;467(2):339–347. doi:10.1007/s11999-008-0636-2.

Carrier ER, Reschovsky JD, Mello MM, et al. Physicians’ fears of malpractice
lawsuits are not assuaged by tort reforms. Health Aff. 2010;29:91585–91592.
doi:10.1377/hlthaff.2010.0135.

Kessler DP. Evaluating the medical malpractice system and options for reform. J
Econ Perspect. 2011;25(2):93–110.

Struve CT. Malpractice crisis: Improving the medical malpractice litigation
process. Health Aff. 2004;23:433–441. doi:10.1377/hlthaff.23.4.33.

Weinstock MB, Klauer KM, Henry GL. Bouncebacks! Medical. Columbus, OH:

1508

Anadem Publishing, 2007.

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364

YOUR DEPOSITION

KEVIN M. KLAUER, DO, EJD, FACEP

What we do not understand will not only be anxiety provoking, but can result
in self-victimization from the “law” of unintended consequences. Your
deposition is a prime example. A deposition is defined by Black’s Law
Dictionary as, “A witnesses out of court testimony that is reduced to writing
for later use in court or for discovery purposes.”

What is conspicuously absent from that definition is, “This is the
doctor’s day in court.” This is, perhaps, the greatest and most dangerous
misunderstanding that physicians have of the legal process.

Your deposition will be scheduled early in the course of a medical legal
case, following filing of the lawsuit. The deposition is the cornerstone of the
discovery phase. Many decisions will be made based on your deposition
performance, which may even include dismissing the claim(s) against you.
However, if the plaintiff’s attorney has done their homework, dismissal is
very unlikely, as the goal of the deposition isn’t to “find facts,” but rather to
find facts to support specific arguments and theories of allegation.

Generally speaking, there are several goals of a deposition: Testing
existing theories/allegations, identifying new theories, sizing you up, and
setting the trap.

Prior to ever considering pursuit of a case, the plaintiff’s attorney will
have secured experts to review the case and provide an opinion regarding
whether or not the care fell below the standard of care and what aspects of
the care were substandard and are defensible or indefensible. These experts
will provide the basis for the claim and the allegations against you. Without
an expert to support their claim(s), there is no way to substantiate the claim,
and thus, no lawsuit. However, these theories and allegations must be tested.
Does the defendant have a plausible explanation? Are there additional facts

1510

that would undermine their theories? These can be mined for through the
deposition process, yours and others, including experts who may be called to
later testify at trial.

To a large extent, depositions are fishing expeditions. Such fishing
expeditions may yield new facts, new insights, and even new
theories/allegations and avenues to pursue in the lawsuit. That is why, when
being deposed by a plaintiff’s attorney, it is your day to be as quiet as
possible and not “your day in court.” Make them do the work. Do not fall
victim to the well-intentioned urge to explain yourself in the hopes of
convincing them how wrong their allegations are. The more you say, the
more is transcribed, and the more you will be accountable for at a future date,
in particular, at trial. In other words, if they want to fish for facts to use
against you, don’t throw the fish in their boat. Make them work for it.

Much of the discovery phase of a lawsuit is determining strategy.
Another very important aspect to plaintiff and defense strategies is their
determination of what kind of witness you will make. Are you credible? Will
the jury like you? Are you overtly nervous while providing testimony? Can
you defend your actions and the care you provided? These, and many more,
questions will be answered from your deposition. As a matter of fact, they
are likely to audio or video your deposition for this exact purpose. If you are
a good witness, this will play well for you. If you aren’t, this is more
opportunity and leverage for the plaintiff’s attorney to pursue higher
settlement demands. They may use this opportunity to rattle their sabers and
intimidate the defense team, proclaiming their chances of a plaintiff verdict
at trial are greater now that they have sized you up.

Perhaps, the most challenging part of the deposition is maintaining
consistency of your message. This can be mentally taxing. The last thing you
want is the plaintiff’s attorney using your own words to discredit you,
strengthening their case. It is truly bad enough that they can and will secure
expert witnesses to weaken your case and strengthen theirs, but it is
devastating when the defendant aids them in this crusade. As previously
noted, the plaintiff’s attorney has theories, and they intend to prove them and
prove them at your expense. They are likely to ask you the same exact
question or similar questions three, four, or more times. It can be maddening,
but don’t lose your focus. This is a game of cat and mouse. They are trying to
shape your testimony in a way that they would like and can use, and they will
attempt to set the trap.

The trap is a game of mental confusion. If they ask you a question
enough times or in enough different ways, you are likely to contradict
yourself. Make no mistake. These missteps, realized by you and your defense

1511

counsel or not, will come back to bite you. The defendant will be asked a
similar or identical question at trial, and such self-incriminating statements
will be recited in front of the jury. The plaintiff’s attorney may even ask you
to read that portion of your deposition testimony. Of course, at that point, no
one will know what trickery occurred to extract that particular response from
you. It will simply appear that on the day of your deposition you said one
thing, and in the courtroom, you said something else. Such contradictions are
at least undermining of a defendant’s credibility, if not devastating to their
case. So, be smart, be consistent, and be quiet. The least said in a deposition,
the better off you are.

Preparation for your deposition is critical. Mock depositions to prepare
for anticipated lines of questioning are essential. Your defense counsel can
assist with helping to craft your messages and get you comfortable with the
process. Plan on a long day. You should be well rested and well fed.
Although it seems like a fine line, you’re being deposed, not interrogated. If
you need a break or want a break for any reason, just ask for one. Dress in
business attire, be respectful, be truthful, and maintain good eye contact. If
you don’t understand a question, don’t answer it until it is clarified.

KEY POINTS

Understanding the purpose of the deposition is for fact finding, but not
to discover the truth.
Consistency of well thought out responses to difficult questions is
critical to protecting yourself.
Approach this like an important exam: Study, get plenty of rest, and
eat a good meal in advance.
If you don’t remember, simply respond, “I don’t remember.”
If at all possible, be cordial, positive, engaging, and maintain eye
contact.

SUGGESTED READINGS

Bal BS. An introduction to medical malpractice in the United States. Clin Orthop
Relat Res. 2009;467(2):339–347. doi:10.1007/s11999-008-0636-2.

Carrier ER, Reschovsky JD, Mello MM, et al. Physicians’ fears of malpractice
lawsuits are not assuaged by tort reforms. Health Aff. 2010;29:91585–91592.
doi:10.1377/hlthaff.2010.0135.

Kessler DP. Evaluating the medical malpractice system and options for reform. J

1512

Econ Persp. 2011;25(2):93–110.
Struve CT. Malpractice crisis: Improving the medical malpractice litigation

process. Health Aff. 2004;23:433–441; doi:10.1377/hlthaff.23.4.33.
Weinstock MB, Klauer KM, Henry GL. Bouncebacks! Medical. Columbus, OH:

Anadem Publishing, 2007.

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365

SURVIVING A LAWSUIT

HUGH F. HILL III, MD, JD, FACEP, FCLM

Your patient’s bad outcome was painful, but now you are accused of causing
it! Or what you thought was a success is now called a failure, in a claim that
states you should have done even better. Or, perhaps least painful but most
infuriating, nothing bad happened and yet you are still accused of error.

We understand intellectually that people harmed by wrong actions or
failure to act should not have to bear the costs, that the individual or
institution responsible should compensate the innocent victim. We may
accept the economic argument that the person best able to potentially avoid
the damage should be accountable. We may recognize that the “system”
doesn’t care so much about fairness; society simply prefers that people take
their disputes to court rather than fall back on feud, vendetta, and violent
alternatives.

Every rationale is cold comfort when a health care provider is served
their subpoena in a medical malpractice lawsuit. For most health
professionals, compensation is only part of our motivation. We do what we
do to help patients; to be accused of causing harm assaults our raison d’etre.
It’s the rare provider who can take being sued as “just business.” Some
describe the experience as comparable to the death of a close friend or
relative.

If a law suit were to occur, we know that it will involve a very public
humiliation, and we will be nearly helpless as our knowledge, awareness, and
choices during a busy shift are dissected and criticized. Jurors without any
understanding of medicine, and likely little of science, are going to decide
whether or not we are at fault.

And the aftermath: Every application for licensure and privileges asks,
“Have you been sued.” Now the answer will be yes and require explanation.

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Any award or settlement will be reported to the national data bank. Even if
you win, you are no longer a cost-free doctor to the insurers. Professionals
report a sense of shame about being sued, even when convinced their care
was correct. Posttraumatic stress symptoms appear. And significantly, a
whole new source of potential bias in your practice must be monitored, for
example, if the case involved an assertion that you should have CT’d the
plaintiff, will you now over-radiate patients?

Coping strategies exist. Some are obvious and natural, some may require
overcoming psychological barriers. There are also important “don’ts”; it is
possible to make the situation worse.

DO

Acknowledge your feelings. Anger and depression are universal
responses. Compartmentalization comes at a cost. We believe the
physicians who have killed themselves after being sued already had
problems, but it’s hard to know. Denial is not the ideal coping strategy.
Share. This is difficult. The sense of shame and fear of being judged
block our impulses to seek feedback and affirmation. Our significant
others need to know what’s going on. We need to hear repeatedly what
we already know: no matter what the plaintiffs and their lawyers say
about us, we are good people and caring professionals. Even if you are
limited to talking about feelings, it’s still helpful. NOTE: You may be
asked under oath if you have discussed the case with anyone else. Your
attorney will know the law in your jurisdiction and with whom and what
you can share.
Consider recording your current recollections about the case. Date
it properly. Litigation can take years before it actually comes to trial.
The plaintiff is one of many patients or families you have cared for,
whereas the plaintiff will have a rock solid memory of what happened,
reinforced over time.
Regain a sense of control. Try to overcome that wish to deny and take
a very active role in the defense, at every stage. Research literature
addressing the care being criticized, be aware of when it was published.
Meet with insurance carrier–assigned counsel early and often. They will
often say they are working for you, but they may have other allegiances.
Both the lawyers and you should be aware of potential conflicts of
interest. Consider hiring your own lawyer out of your own pocket as
additional quality control and support. The expert witnesses will be
crucial. You should be involved in your counsel’s choice of expert by
researching their publications and history; you can be sure the other side

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will. And when you know the plaintiff’s experts, dig in. All their
publications and presentations should be exhumed and examined.
Although it’s not often done, we recommend you try to attend as many
of the depositions of the experts as possible. If you miss one, read the
transcript especially carefully. Their demeanor at deposition will
suggest what it will be at trial. If the same lawyer that’s suing you
deposes and questions at trial, you’ll be more prepared.
Professional counseling is available. Talk therapy and behavioral
therapists stress mitigation techniques can help. ACEP has offered, and
may still at the time you are reading this, peer-to-peer counseling for
defendant emergency physicians through the Medical Legal and
Wellness Committees.
Talk with your counsel about possibly issuing a demand letter.
Consider telling your insurance carrier that you want them to offer
policy limits. If they refuse and the court awards more money than the
policy covers, you may then have a cause of action for the additional
amount against the insurer. This is especially important if the plaintiffs
are demanding more than policy limits.Prepare to Testify. Before being
deposed, your lawyer will want to prepare you. Insist on as much time
as you need. Generally, you will be advised to answer only the question
asked and refrain from volunteering information. Most plaintiff’s
counsel try to encourage you talk in deposition; they save the attacks for
court. If you or your lawyer are concerned about your appearance in
court, there are services that consult on this, and even those that will
organize a mock trial of your case before the real thing.

DO NOT

Don’t attempt to alter or destroy records, even if they are incorrect or
misleading. Defensible cases have been rendered losers by revelation of
backdated, altered, or lost records.
Don’t speak directly with plaintiffs, their experts, or their experts’
colleagues. This could be interpreted as harassment. And don’t talk with
anybody on the other side, or any strangers, without your lawyer
present.Don’t discuss the facts of the case with colleagues or other
defendants unless your counsel approves. You will feel the need for
absolution by peers, but the discussion could become an element of the
case, or your friend could be drug in as a witness.
Don’t misrepresent facts to your counsel. Yes, you want her deeply
committed to your interpretation of what happened and you are
advocating for that interpretation, but she will be hobbled by any

1516

misunderstanding.
One last bit of advice: Remember you will get through this. It will take about
a year after the case is over before things start to feel normal again. You may
have to go through every stage of grief, but you will return to what makes
our work the joy that it is, caring for and about patients you serve.

KEY POINTS

Acknowledge your feelings
Share and seek help
Take back some control by active involvement in the process
Don’t mess with the records
Never lose faith that you will survive this

SUGGESTED READINGS

Andrew L. GPS for malpractice litigation. Emergency Physicians Monthly.
Available at: http://epmonthly.com/article/gps-for-malpractice-litigation/

Brenner I. How to Survive a Medical Malpractice Lawsuit: The Physician’s
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