Watch out for this malpractice trap!

When defense attorneys get together to trade war stories, they often complain about the trouble caused when one co-defendant tries to escape liability by blaming the other for the patient's injury. "Plaintiffs' lawyers love it when physicians point fingers at each other," says John Fitzpatrick, a defense attorney in Richmond, VA. "They can just sit back and watch the doctors destroy each other."

That scenario occurred in a recent Texas case involving an elderly patient who developed an aortic aneurysm. Fearing it would rupture, her internist recommended surgery, and referred her to a vascular surgeon. The surgeon examined the patient and told her she'd need a pre-op cardiac evaluation first because she was diabetic and had cardiac problems.

In their depositions, each physician insisted that the other one had dropped the ball. As a result of the "blame dumping," the attorneys for both doctors realized that a jury would probably find them both liable for the terrible miscommunication that caused the patient's death. The insurance carriers concluded that the case was indefensible and agreed to settle for a substantial sum rather than risk a much higher verdict from a jury.

"That happens all the time," says Rick Evans, a San Antonio defense attorney who represented the surgeon in that case. "When co-defendants are at each others' throats, they're providing the plaintiff's attorney with free ammunition. In fact, he'll try to encourage them to play the blame game, and then exploit it. If the case goes to court, he'll tell the jury, 'You don't have to take my word for it-or even the experts' word-that there was negligence in this case. The defendants themselves agree that they were negligent.' "

When co-defendants play the blame game

As in the Texas case, those involving conflicts between co-defendants rarely get to trial. But defense attorney John Fitzpatrick recalls one that did: A patient showed up at the ED with severe back pain after falling off a ladder. The emergency physician ordered a CT scan, which was normal. He also ordered a routine ECG, which revealed an abnormal arrhythmia. That should have led to a cardiac evaluation and additional tests, which probably would have revealed a full occlusion of the LAD artery, known as "the widow-maker" because it's typically asymptomatic until it kills. Unfortunately, the ED doctor never read the ECG report.

Since the patient was in great pain, he was admitted to the orthopedic service. The orthopedist examined him, but never saw the ECG report either, since the ED doctor hadn't mentioned it in the chart. With no sign of a fracture or disk injury on the CT-scan, the orthopedist arranged for pain management, which seemed to work. The patient was discharged two days later, and died of a massive heart attack the following day.