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Emergentology

When the Legal World Doesn't Understand the Medical One

Walker, Graham MD

doi: 10.1097/01.EEM.0000574816.62743.52
Emergentology

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I heard a knock on my door late one Sunday night. My dog barked as she always does, and I ran downstairs to find a man standing on my porch. Opening the door, he handed me some papers. “Graham Walker?” I nodded. “I've got a subpoena here for you.”

I had heard rumblings that I might be served; someone left a message on my cell and called my hospital to track me down.

I contacted a paralegal at the firm representing me, and she told me the case was from years ago at another hospital where I used to work, it had been put on hold for legal reasons, I was not named in the lawsuit, and I would just be giving a deposition as a factual witness. She said they had found my name in the initial ED visit record, but that I was barely part of the case. She also explained how the deposition would work—I've been lucky enough never to have gone through the process. I would answer questions under oath with a court reporter and both sides' lawyers.

About six weeks later, I met with my lawyer, who walked me through the deposition process and his approach. Before meeting with him, I thought I wouldn't be able to answer anything because the case was years ago. My lawyer acknowledged that I probably wasn't going to remember anything from the case, but that just mindlessly repeating “I don't recall” would come off as obstructive.

“Instead,” he counseled, “if you recall your usual and customary practice at the time, you can answer with that. But we're not here to have you speculate.” He also told me that the opposing counsel would ask me questions 15 different ways to try to poke holes in my responses. “Obviously, that's not going to be very helpful because you're just going to answer honestly and to the best of your ability and knowledge. It'll probably take three or four hours. I don't even know why they're subpoenaing you.”

He thought the plaintiff's team was somehow trying to connect my involvement with some bigger thread, but he pulled out a huge stack of papers, went over the timeline, and shrugged. “You're barely even a part of this case, and anything that happened in the case happened a long time after you saw the patient.”

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SUE?

The following morning I met the court reporter and opposing counsel. The process started with questions about my credentials and training. Once we got into the information about the relevant case, it was shocking to me how little the counselor understood about how emergency medicine is practiced (and documented). I guess I had expected a malpractice attorney to understand how the ED works (my attorney certainly did), but this lawyer did not. At all.

Laid out in front of me were the notes from the ED visit and the ED orders. (Actually, there was a clear, well-documented ED note and the confusing mess of information spat out by the EMR, including orders.) As is typical for EMRs, this chart was written diarrhea of everything the EMR can track when you print it out, along with a timestamp for everything. Because the EMR is, of course, made for health, not lawsuits, it doesn't print in a format built for case review. Instead, it separates the information into nursing notes, vital signs and assessments, orders, results, and insurance documentation, which makes reviewing it more challenging for lawyers and certainly more confusing during a deposition.

I was particularly surprised that the lawyer didn't understand the difference between the medical note and the orders. When there was a slight time discrepancy between documenting a consult in the note and documenting it in the EMR's orders system, she tried to grill me on the inconsistency. I shrugged. “I'm not sure what to tell you; there are two different places we document stuff.”

Later, she tried to fluster me when I acknowledged I didn't know a particular nuanced detail of medicine far outside the scope of anything we ever see or manage. It was as if she were trying to damage my ego to make me misspeak, but it was a completely irrelevant line of questioning to me. She also pulled out a handwritten, chicken-scratch consultant note, asking me to interpret it.

Lawyer: Do you see where it says SUE?

Me: Yes, I think that's what it says.

Lawyer: Doesn't SUE stand for syncope of unknown etiology?

Me: I've literally never seen syncope abbreviated like that nor ever heard of syncope referred to as syncope of unknown etiology as a standard or common phrase.

Lawyer: So you don't know what syncope of unknown etiology is?

Me: I can surmise what that phrase is, of course, but I've never seen it abbreviated that way nor ever called syncope of unknown etiology. We just call it syncope.

Admittedly, it was easy for me to not lose any sleep over this case because I wasn't named. But it was fascinating to see how little the legal world understands the medical one, and it also made me more aware of how clicks and toggles and button names printed on paper can be taken out of context and seem like evidence to a lawyer looking for a needle-sized error in a complicated medical care haystack.

The details of this case were changed to protect patient privacy.

Dr. Walkeris an emergency physician at Kaiser San Francisco. He is the developer and co-creator of MDCalc (www.mdcalc.com), a medical calculator for clinical scores, equations, and risk stratifications, which also has an app (http://apps.mdcalc.com/), and The NNT (www.thennt.com), a number-needed-to-treat tool to communicate benefit and harm. Follow him on Twitter @grahamwalker, and read his past columns athttp://bit.ly/EMN-Emergentology.

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