Emergency Medicine Malpractice: High-Risk Cases, Standards of Care, and Expert Testimony

Dr. Noah Kaufman | Keefe Memorial Hospital

Dr. Noah Kaufman is a board-certified emergency physician with over two decades of clinical experience and more than 10 years serving as a medical-legal expert witness. He has reviewed hundreds of cases for both plaintiffs and defendants, with testimony spanning depositions, hearings, and trial. Dr. Kaufman has been featured on NBC as a medical expert and frequently lectures on standard of care, clinical judgment under uncertainty, and the ethical role of physicians in litigation. He is a frequent podcast guest and author of the soon to be released The Ethical Expert Witness – A guide for Attorneys and Physicians. He resides in Denver, CO and reviews cases across the US.

Peter LeGrand | Donohue Brown Smyth LLC

Peter LeGrand’s practice is concentrated on professional liability litigation, particularly in defending healthcare professionals. Although he primarily practices in Illinois, Peter has appeared and participated in healthcare professional liability litigation around the country. Peter has tried multiple jury trials to verdict, including in the service of emergency medicine professionals.

Peter graduated magna cum laude from the University of Illinois College of Law in 2018. His article The Potential Unconstitutionality of the Consumer Financial Protection Board and its Ramifications for the Elderly was published in the Elder Law Journal. Prior to law school, he graduated magna cum laude from the University of Missouri in 2014.

I. Distinctions between emergency medicine and other medical specialties | 1:00pm – 1:20pm

II. Common pitfalls leading to malpractice claims in the ER: Diagnostic delays, misdiagnosis, triage errors, inadequate informed consent | 1:20pm – 1:40pm

• Discussion with general fact patterns, cases to establish what you are looking for in an expert/claim
• Difference between your SOC expert (emergency medicine) and causation experts (claim dependent)

III. Preparing to file or defend a legal malpractice lawsuit: Emergency medicine | 1:40pm – 2:00pm

• Aware of specific federal and state laws
• The role of EMTALA (Emergency Medical Treatment and Labor Act)
• Important state laws to consider
  • COVID-related immunity
  • Statue of limitations and potential exceptions
  • Medical panel requirements
  • Damages caps
  • Sudden emergency doctrine

Break | 2:00pm – 2:10pm

IV. Expert testimony: Qualifying experts and framing testimony in emergency cases | 2:10pm – 2:30pm

• Example of Illinois: Initial expert opinions required to bring a lawsuit, barrier to entry in other jurisdictions
• Aware of applicable standard of care to support claim
  • Legal definition and evolution of the “standard of care” in medical malpractice
  • Law vs. clinical practice
  • Utilizing your expert to learn the SOC
  • Preparing your expert to avoid common pitfalls in SOC opinions
• Common high-risk scenarios that experts will be commenting on
  • Cardiac events, stroke, trauma, and sepsis
  • Documentation issues and impact on liability
  • Discussion from plaintiff and defense side on documentation
  • Defenses for SOC in time-sensitive medical emergencies
• How clinical guidelines, protocols, and hospital policies can be used
  • From plaintiff and defense perspective
  • From an expert perspective
• Institutional liability
  • Expert testimony – who to get to provide these opinions, what is the difference?
  • Explain institutional liability from “institutional negligence” perspective vs “negligent credentialing perspective” vs “agency”
  • Agency defenses – importance of good consent documentation, specific to jurisdiction in many ways
• Causation defenses
  • Strategies for challenging causation, how do experts like to approach these discussions
  • Good jumping off point for discussion re: Preparation for meeting with your expert
  • Comparative fault vs contributory negligence in emergency medicine defense

V. The role of the expert witness moving forward in the case | 2:30pm – 2:50pm

• Written discovery
  • Following up with your expert: Updated medical records
  • Following up with your expert on written discovery answers
  • Assistance in crafting interrogatories/RTAs
  • Assistance in asking for particular documentation
• Disclosing your expert’s opinions
  • Jurisdictional requirements for how/who/when disclosures are made
  • Discussing opinions with expert prior to disclosure
  • Importance of clean, thorough disclosures that accurately reflects the expert’s opinions
• Trial
  • What an expert needs to succeed at trial
  • Preparation, resources, etc.
  • Importance of expert testimony
  • Role in convincing a jury, necessary role in proving essential elements of medical malpractice

VI. Broad picture – emerging trends in emergency medicine litigation | 2:50pm – 3:10pm 

• What should attorneys be noticing
• What are some of the implications