Empty Chair Strategy – ED Legal Letter

“Can Rarely Used ‘Empty Chair’ Strategy Help ED Defense?” ED Legal Letter, July 2018 – written by: Stacey Kusterbeck

Is the plaintiff attorney refusing to dismiss the emergency physician (EP) from a malpractice lawsuit – even after it’s become quite apparent that another provider was primarily at fault?  The reason may be fear of the “empty chair” defense.

“Usually, as defendants, we stick together. We don’t point a finger at each other, and we don’t bring in empty chairs too often,” says David A. Depolo, Esq., an attorney with Walnut Creek, CA-based Donnelly Nelson Depolo Murray & Efremsky.

The “empty chair” strategy comes into play when there is a potential unnamed defendant with possible exposure. Using the empty chair defense, a named defendant would argue the liability of the unnamed defendant. “In order to do that, there has to be evidence of negligence on the part of that empty chair individual. You are arguing their liability for apportionment of the liability,” Depolo says.

A jury is asked to apportion fault among all those whom the jury believes are at fault for the injury. If the jury finds that Defendant A is 30% responsible, and they find Defendant B 40% responsible, there still is 30% liability remaining. The jury could apportion that fault to a non-party wrongdoer. But for the jury to do that, there has to be evidence of the wrongdoing at trial. “In a med/mal case, that requires expert testimony, just like you’d need to have expert testimony against any defendant,” Depolo explains.

The expert has to testify that there was negligence on the part of the unnamed wrongdoer. Only if there is evidence of that negligence can the jury apportion fault to the unnamed party. The defense would need to disclose the expert’s name, and have that expert testify as to the negligence of the unnamed person before trial. “There is always a tactical decision that has to be made about whether you really want to do that,” Depolo says. It could trigger the plaintiff’s side to ask for a continuance of the trial date to bring this previously unnamed party into the case as a defendant. That newly named defendant, facing negligence accusations from the defense, is very likely to respond by claiming the existing defendant is the one really to blame for the bad outcome.

Suddenly, the defense attorney is fighting not only the plaintiff attorney, but also the new defendant. “It’s a lot harder to fight a war on two fronts than one. You have just made your case that much harder,” Depolo says.

Depolo recently argued the empty chair defense for the first time in his career. The case involved an oral surgeon who performed a procedure, and a dentist who provided the follow-up care. The dentist was dismissed from the case. “The jury found in favor of my client, the oral surgeon, so there was no determination as to apportionment of fault,” Depolo says.

However, the jurors commented after the trial that the outcome likely would have been different if the dentist had not been dismissed from the case during the trial. “Here, the ability to argue the empty chair may have made the difference in the complete defensibility of the case,” Depolo explains. Since the dentist was not in the case, the dentist was not there to argue liability on the part of the oral surgeon. “I was able to insinuate that the unfortunate outcome was the entire fault of the dentist,” Depolo explains.

In an ED case, a similar situation could come about with a consultant as the empty chair. Depolo gives this hypothetical example: The EP orders a CT scan, which the radiologist read incorrectly as negative. The EP relies on that interpretation, and the patient is discharged. The patient ultimately experiences a bleed, and it’s discovered that the CT scan was misread and showed a hematoma. In this scenario, if the radiologist is not named as a defendant, the EP might want to argue that he or she relied on the CT scan, which someone else misread.

The plaintiff argues that the EP was negligent in discharging the patient, and sues the EP and the hospital, but doesn’t name the radiologist. The plaintiff’s expert testifies that the EP was within the standard of care to rely on the radiologist’s interpretation. At this point, it’s too late to bring in another party.

In this scenario, the defendants would argue the liability of the empty chair — the radiologist. The jury would be asked to decide whether the hospital, the EP, or the radiologist was negligent, and apportion liability to each party deemed as negligent. The jury decides the radiologist was 90% liable for misreading the film, while the EP was 10% liable; the hospital carried no liability. The jury awards $500,000 in non-economic damages and $50,000 in medical bills. In California, non-economic damages are capped at $250,000, and defendants are joint and severally liable for economic damages. “Even if the EP is 10% at fault, the EP is 100% responsible for the economic damages,” Depolo adds.

The non-economic damages are apportioned according to fault. With non-economic damages reduced to $250,000, and the EP is found 10% at fault, the defendant EP is responsible for $25,000 in non-economic damages and $50,000 in economic damages. Even though the jury verdict was $550,000, the EP’s responsibility is only $75,000. “That’s how MICRA [The Medical Injury Compensation Reform Act] and an empty chair defense could reduce a substantial exposure to a more palatable one,” Depolo says.

These cases underscore how careful plaintiffs have to be before they let someone out of a case. “If one of the codefendants argues — after the dismissal of another defendant — that there is liability on the part of the dismissed defendant, that’s an empty chair,” Depolo says.

Instead of dismissing a named defendant outright, the plaintiff attorney might agree not to oppose a motion for summary judgment. The hospital might file a motion for summary judgment. “Now, the emergency physician has to make a decision,” Depolo says. If the EP doesn’t oppose the summary judgment, and neither does the plaintiff, and the hospital gets out of the case, then there can’t be any apportionment of fault because there has been a judicial determination of no liability on the hospital’s part. “That happens a lot,” Depolo adds.

The plaintiff attorney has to make sure that another defendant won’t be able to argue that the EP is negligent. “This can explain why some defendants stay in cases longer than they otherwise would — to avoid an empty chair dilemma for the plaintiff,” Depolo says.

In some cases, an “empty chair” situation occurs because a plaintiff attorney fails to name the provider who was really at fault. This was the situation in a malpractice lawsuit involving an ED patient who died of a gastrointestinal (GI) bleed. Bruce Wapen, MD, an EP at Mills-Peninsula Medical Center in Burlingame, CA, was retained as an expert on behalf of the plaintiff. Here are the facts of the case: A female patient presented to an ED at 8 a.m. with a history of peptic ulcer disease and a present illness that included vomiting blood acutely. She was worked up in the ED and transferred to the med/surg unit five hours later. During the ED visit, the EP ordered blood to be typed and crossed, but no blood was administered. After admission to the med/surg unit, the patient went into shock, the rapid response team was called, and the patient went to the ICU, where the first units of blood were administered. During an upper endoscopy in the ICU, the gastroenterologist dislodged the clot that was covering a minimally leaking arterial bleeder. The patient began bleeding uncontrollably. She was rushed to the OR, but the patient coded and died before surgery could be performed. “She had bled out eight hours after presenting to the ED as a ‘GI bleed,’” Wapen reports.

Communication between the EP and the GI specialist became a point of contention during the case. Both agreed they discussed the patient, but they differed significantly on how many times they talked about this case and what information was conveyed. The EP testified at deposition that he told the gastroenterologist he needed “to see the patient as soon as possible,” but there was no documentation of this in the ED chart.

In contrast, the gastroenterologist claimed that the EP had failed to inform him that there had been a hypotensive event in the ED, that the patient had passed melanotic stool, or that she had been typed and crossed, indicating that the EP had already determined she needed a blood transfusion. “But most importantly, the gastroenterologist stated that the EP did not tell [the gastroenterologist] to cancel his elective procedures and to come to the ED ‘to see the patient as soon as possible,’” Wapen says. The gastroenterologist insisted he was not aware of the critical nature of the patient until he was called to see the patient in the ICU. This was about six hours after an initial low hemoglobin level came back to the ED from the lab, and three hours after the patient had been deemed to be unstable in the ED secondary to her hypotensive event.

“Plaintiff’s initial med/mal legal team assumed that the whole problem was with the EP, who hadn’t ordered and administered blood ASAP,” Wapen says. “But the initial hemoglobin was slightly over eight. So, failure to transfuse ASAP wasn’t the issue.”

Later, a second lawyer took over the case. In reviewing the case at that point, Wapen found that the EP had made some evaluation and management errors. However, critical questions regarding the lack of adequate communication between the EP and GI specialist were the crux of the case.

“The first lawyer assumed that the gastroenterologist was the good guy who did everything possible to save the patient, so the GI [specialist] wasn’t named as a defendant,” Wapen says. Thus, the gastroenterologist became the “empty chair.”

The case went to trial, the gastroenterologist declined to testify, and the jury returned a defense verdict. “The EP’s defense attorney painted a picture of a patient who was stable up until the point at which the gastroenterologist did his endoscopy,” Wapen says. By not naming the gastroenterologist, the first lawyer left an empty chair. From that point forward, the plaintiff could not contend that any fault lay with that empty chair.

“It’s always bad when a defendant is caught in a potential lie about what they said they did,” Wapen says. However, the plaintiff attorney left an empty chair at the onset of the case by not naming the gastroenterologist. This removed the courtroom spectacle of watching the EP and the gastroenterologist point fingers at each other. “Had this drama unfolded, the case would likely have ended in a verdict favorable to plaintiff,” Wapen predicts.

In another malpractice lawsuit, the “empty chair” strategy helped the ED defense team in an unusual way. The case involved a man who presented to the ED with acute coronary syndrome (but no evidence of myocardial injury) and was discharged with instructions to follow up with a cardiologist that same day after the EP talked with the cardiologist by phone. The patient followed up but couldn’t get an appointment to be seen by the cardiologist in a timely manner.

When the patient was seen, the cardiologist missed some worrisome changes on the ECG. The patient subsequently died of an acute myocardial infarction. Wapen reviewed the chart for the plaintiff attorney and concluded that the EP was faultless. However, the plaintiff attorney was reluctant to dismiss the EP for fear that the cardiologist named in the lawsuit would try to shift blame to the EP’s empty chair. Eventually, the plaintiff attorney agreed to dismiss the EP from the lawsuit, but retained Wapen as an expert in the case to defend the EP’s care, should the need arise. Wapen could testify that the EP did nothing wrong and was left out of the case for good reason. Thus, the EP now had a report from both his own defense expert and also from the plaintiff’s expert in emergency medicine saying that he met the standard of care. While the plaintiff attorney retained him, Wapen functioned as an expert for the defense. This would prevent the vilification of an EP who could be dismissed from the case without concern regarding his empty chair. The case reveals why attorneys generally name every provider involved in the patient’s care when filing a malpractice case.

“Until all the facts of the case are known, attorneys want to name everybody and sort it out later through the discovery process,” Wapen notes.

Plaintiff attorneys “can’t afford to leave someone out of the mix for fear of discovering, later, that such an omission left a crucial player unnamed, who then becomes the empty chair,” Wapen explains. This is where experts in all relevant specialties become important. The earlier they become involved in a case, the sooner it may become obvious to a plaintiff attorney that a provider can and should be dismissed from the case.

The first attorney’s mistake was failing to retain an expert in gastroenterology because he already considered the EP to be at fault.

“The result was that plaintiff’s attorney found out too late where the bulk of the negligence lay, did not name GI [specialist] as a defendant, and the case was not successful,” Wapen says. If a defense attorney is representing multiple physicians, occasionally he or she can convince the plaintiff attorney to dismiss one or more of the physicians from the case on the condition that the dismissed physician will not be blamed for the bad outcome. That way, says Wapen, “plaintiff’s attorney agrees to let one or more providers off the hook without risking the potential consequence of the empty chair.”

David A. Depolo, Esq., Attorney, Donnelly Nelson Depolo Murray & Efremsky, Walnut Creek, CA. Phone: (925) 287-8181. Email: DDepolo@dndmlawyers.com.
Bruce Wapen, MD, Emergency Physician, Mills-Peninsula Medical Center, Foster City, CA. Phone: (650) 577-8635. Email: ExpertWitness@DrWapen.com.