Playing the Blame Game
Playing the Blame Game
Plaintiff’s lawyers like nothing more than to watch two physician defendants point the finger at each other. Take the example of a recent case from Northern Virginia. A 55-year-old patient was diagnosed with an intact cerebral aneurysm, and after considering her options she decided to proceed with endovascular coiling.[1] This procedure involves placing coils in aneurysms by inflating a balloon inside the vessel to prevent the coils from occluding the vessel lumen.[2] The coils are placed within the aneurysm to induce clotting which in turn prevents the flow of blood into the aneurysm. During this procedure, the balloon was overinflated which led to rupture of an artery, and ultimately the patient died three days later.[3] Both the neuro-radiologist and the anesthesiologist were named as defendants in a medical malpractice lawsuit.[4]
The neuro-radiologist was deposed and told the plaintiff’s attorney that the patient was “‘light on anesthesia and bucked and jerked during the procedure’” and that “‘[t]he sudden movement caused the balloon to malfunction.’”[5] During his deposition he testified that the patient “‘lifted her head six to eight inches off the operating table.’”[6] However, the anesthesiologist testified the patient’s head did not move during the procedure and that the problem was the neuro-radiologist, who overinflated the balloon which caused the rupture.[7]
At trial, “the specialist defendants, their experts and their lawyers turned on each other.”[8] The jury deliberated and fixed blame solely on the neuro-radiologist and awarded the patient’s family over $7,000,000.00 (this was reduced to the medical malpractice cap of $2,050,000).[9]
Defendants blaming one another is music to the ears of a plaintiff’s attorney. Medical malpractice lawsuits involving multiple defendants are challenging, and the addition of unnecessary finger pointing only increases the level of complexity and exposure for those named defendants. Physicians blaming one another in litigation can strengthen the plaintiff’s arguments, divert defense resources, and result in the jury focusing on the wrong issues.
When the blame game finds its way into the medical record, it adds yet another problem that could have otherwise been avoided. The medical record is not the proper channel for criticizing or blaming another provider. Medical records can be used as evidence during litigation and negative notes can make the defensibility of a case more challenging. Inevitably, the author of that note if not a defendant will be pulled into the case to testify as a witness.
Most
of the time blaming another is inadvertent and not as direct as represented by
the above example. This can occur when medical opinions are explained to the
patient or documented in the record without knowing all of the objective facts.
In either scenario, when a lawsuit is filed the professional and personal
ramifications can be significant. If you are concerned that a bad outcome may
become a lawsuit please contact Piedmont Liability Trust for assistance.
[1] Peter Vieth, Two docs blame each other, jury awards $7M, Virginia Lawyers Weekly, July 26, 2017, https://valawyersweekly.com/2017/07/26/two-docs-blame-each-other-jury-awards-7m/
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.