Page 334 | On The Record | Case 6 Episode 2

 The deposition story. A single page of the medical record — the page the plaintiff's attorney returned to again and again — became the load-bearing document of the case. How a routine triage note became the moment the case turned. The trial, the directed verdict for one defendant, the settlement against another, and what page 334 still teaches every clinician who writes a note.

Transcript

SPEAKER_02 1:29

This podcast is for educational and informational purposes only. It is not medical advice, legal advice, or professional advice of any kind. And it does not create an attorney client, physician patient, or other professional relationship. Any discussion of cases, outcomes, standards of care, statutes, or regulations is general in nature, may be incomplete, and may vary by jurisdiction and over time. Listeners should consult their own attorney, malpractice carrier, risk manager, or qualified clinician for advice on any specific matter. Any case discussions are based on public records, de-identified information, or educational reconstruction. The views expressed are those of the speakers and do not necessarily reflect the views of any employer, hospital, health system, insurer, or affiliated organization. March 25th, 2022. A courtroom in Queens County. Before jury selection begins, an announcement is made on the record. The hospital and the city have agreed to settle the claims against them for just under $500,000. The claims against the hospital are resolved. What remains is the trial against the primary care physician.

SPEAKER_00 3:05

The trial will require the plaintiff to establish two elements against the PCP. First, that he departed from the accepted standard of medical care. Second, that those departures were a substantial factor in causing the patient's injuries. Both elements are required under the state's law. If either one is missing from the evidentiary record, the case cannot go to the jury. This episode examines how each side presented its case and how the proceeding was resolved.

SPEAKER_02 3:36

The lawsuit was filed one year after the hospitalization, naming the hospital corporation, the city, the hospital itself, and the PCP. Two causes of action medical malpractice and lack of informed consent. Specifically, that the patient was not properly advised of the true nature and severity of his condition.

SPEAKER_00 4:02

For physicians in the audience, the bill of particulars is a document that deserves a moment of explanation. After a malpractice complaint is filed, the plaintiff serves a bill of particulars that specifies exactly what departures from the standard of care are alleged. This matters because it locks in the plaintiff's theories. Theories not disclosed in the bill of particulars can be precluded at trial. The defense is entitled to know what it needs to defend against.

SPEAKER_02 4:32

The allegations against the PCP included failure to provide emergency transport, recognizing an emergent situation, but sending the patient by private vehicle rather than calling an ambulance. The allegation that no comprehensive exam was performed. And improper medication. The claim that oral antihypertensives were contraindicated. One additional allegation was included in the bill of particulars. Improper telephone triage. This allegation was factually unsupported. The patient arrived at the PCP's office unannounced in person. No phone call occurred. Both the patient and the PCP confirmed this in depositions.

SPEAKER_00 5:28

The improper telephone triage allegation illustrates a common issue in malpractice pleadings. Bills of particulars are sometimes drafted broadly before all depositions are complete. When the facts do not support an allegation, it becomes a vulnerability. Opposing counsel can highlight it to suggest the plaintiff's case is not grounded in the actual record. In this case, it was a minor issue. A more consequential procedural development involved the medication allegation.

SPEAKER_02 6:05

The terms, just under $500,000 to resolve all claims, the plaintiff responsible for satisfying state and Medicare liens from the settlement funds, and a formal discontinuance with prejudice. The available records contain no mention of a confidentiality provision or an admission of liability.

SPEAKER_00 6:38

The PCP's defense counsel immediately obtained what is called a general obligation set off. In plain language, if the trial against the PCP had proceeded to a verdict and he had been found liable, the settlement amount already paid by the hospital would have reduced any jury award against him dollar for dollar. This is a statutory protection in the state that prevents a plaintiff from collecting twice for the same injury. With the hospital claims resolved, the trial proceeds against the PCP alone. For physicians who find themselves in multi-defendant cases, this is a common scenario. Co-defendants can settle at different stages, and what remains is a trial focused on the specific allegations against one physician. The jury will hear the case against the PCP on the departure and causation questions without the hospital defendants at the table.

SPEAKER_02 7:43

The argument, the pharmacokinetic claim, that the oral antihypertensives caused a significant reduction in the patient's blood pressure during an active stroke was a new allegation not included in the original Bill of Particulars.

SPEAKER_00 8:00

A motion in Lemen, from the Latin at the threshold, is a pretrial motion that asks the court to rule on the admissibility of evidence before the jury hears it. It exists to prevent surprise and ensure fairness. If a theory of liability was not disclosed in the Bill of Particulars, the defense can argue it was denied the opportunity to prepare against it. The court has discretion to preclude the theory. In this case, the court ruled in favor of the defense. The medication and blood pressure theory was removed from the jury's consideration. The pharmacokinetic argument, the 119 over 94 blood pressure reading at 8.09 p.m., the permissive hypertension contrast, the delayed peak effect of the oral medications, none of it was presented to the jury.

SPEAKER_02 8:48

The practical effect. Second, that the PCP departed by not calling an ambulance. A third question, regarding the prescription note and instructions to go to the hospital, was objected to on scope grounds. And the objection was sustained.

SPEAKER_01 9:21

I want to make sure the clinical audience understands what just happened procedurally, because this shapes everything that follows. The medication theory, the argument that giving long-acting oral antihypertensives to a patient with an evolving stroke was a departure, was not evaluated by the jury. It was removed before trial on procedural grounds. The clinical question of whether those medications harmed the patient was never weighed by 12 people in a courtroom. The reason was not that the argument was medically wrong, the reason was that it was not disclosed early enough in the litigation process. That is how motion in limine works. And it is a powerful tool that physicians should understand if they are ever involved in a malpractice case. It also illustrates a theme that crosses many professional roles, the role of error. This very well could have been an oversight by the plaintiff's attorneys or a theory that was not developed early enough by their experts. Either way, this was a material fact that could have been argued in front of a jury if it had been disclosed earlier in discovery. The procedural rules exist for good reason, but understanding them means understanding that the merits of a clinical argument can be separated from whether that argument ever reaches the jury.

SPEAKER_02 10:44

The plaintiff's medical expert was a neurologist with over 30 years of experience, board certified in psychiatry and neurology, with a subspecialty qualification in clinical neurophysiology. His practice was approximately 80% private clinical practice, with the remainder in administration, billing, and testimony. His primary testimony client was the U.S. government, the Social Security Administration's Division of Hearing and Appeals. The plaintiff's experts' opinions on the PCP included the PCP departed from the standard of care by not performing a comprehensive neurological examination, by not appreciating an active stroke, by administering contraindicated oral antihypertensives, and by not calling an ambulance. On the hospital, he opined that the 4.5-hour TPA window was the applicable standard, citing a 2009 AHA science advisory, and that the hospital departed by not triaging the patient as a neurological emergency. His direct examination established, through the judge's notes, that the patient was a viable TPA candidate until approximately 6:30 p.m., that the PCP departed from the standard by not performing a comprehensive exam and by not calling an ambulance, and that ambulance transport would create the shortest delay and minimize the deficits. Then came cross-examination. The defense raised several challenges to the expert's testimony. First, during direct examination, the plaintiff's expert stated six times that the patient was diabetic. On cross-examination, the defense confronted him with his own intake note from his initial evaluation of the patient, which read There is no history of hypertension, diabetes, or asthma. The hospital chart confirmed hypertension, hyperlipidemia, coronary artery disease, no diabetes. The expert acknowledged the error. Second, the defense explored the expert's personal experience with TPA, the very therapy at the center of his standard of care opinion. In a prior case, the expert had testified under oath. I have never ordered TPA. On redirect in this trial, he stated he had been part of the decision tree for TPA during residency. On recross, the defense read the prior testimony back to him.

SPEAKER_01 13:35

A quick note here for any physicians planning to offer expert witness testimony. Understand that previous depositions may be discoverable and can be used to contradict your current opinion. This should not be a problem for physicians who approach this work honestly and consistently. Our expert opinions and statements should not fluctuate from case to case or contradict previous expert testimony we have given. Unless the standards changed in the interim.

SPEAKER_02 14:20

The defense pointed out that the intake form already contained the plaintiff's law firm name and phone number. The expert acknowledged the referral had come through an expert referral service that connects attorneys with medical professionals. A three-month hospitalization that was explicitly documented in the hospital chart. The expert stated the patient had not provided that history during his evaluation.

SPEAKER_00 15:18

Each of these cross-examination points serves a specific litigation function. The diabetes error goes to thoroughness. If the expert repeatedly stated a major comorbidity that does not exist, it raises questions about how carefully he reviewed the records. The TPA testimony goes to qualifications. If the expert has never personally ordered the therapy he is opining was indicated, the defense can argue his opinion lacks practical foundation. The referral pathway goes to objectivity. Expert witnesses who are identified through litigation referral services face questions about whether their opinions are independent or aligned with the retaining party. The omitted craniotomy history goes to completeness. If a prior intracranial hemorrhage is potentially relevant to TPA eligibility, omitting it from the expert report is a significant gap.

SPEAKER_01 16:18

The cross-examination challenged the expert's credibility, and some of those challenges were substantive. The diabetes error was a genuine mistake. The TPA experience question was a legitimate qualification issue, but the underlying clinical reasoning of Chise Foufauf about perfusion pressure, about the 4.5-hour window, about the importance of rapid evaluation can be assessed separately from the expert's performance on the stand. A valid clinical argument does not become invalid because the person presenting it had credibility vulnerabilities. And conversely, a strong courtroom performance does not make a weak clinical argument correct. That distinction matters for understanding how expert testimony works in practice.

SPEAKER_00 17:06

The plaintiff's counsel attempted to rehabilitate the expert on the diabetes issue by asking whether, setting aside the diabetes, the remaining symptoms still constituted a departure from the standard of care. The expert answered, yes. When counsel attempted to extend the rehabilitation to the ambulance question, the defense objected on scope, and the objection was sustained.

SPEAKER_02 17:28

The defense presented two expert witnesses on the TPA and standard of care questions. The first, an emergency medicine physician, opined that the standard of care in August 2015 permitted TPA only within a strict three-hour window. He testified that the patient was a very poor historian and that it was prudent to withhold TPA when the timeline was unreliable. He also testified that a stroke workup takes time and that completing it in 10 to 30 minutes was not the standard. The second, a vascular neurologist at a major academic medical center with board certifications in internal medicine, neurology, vascular neurology, and neurorehabilitation, and approximately 18 years of experience as an attending ED physician, offered several opinions. He testified that the 4.5-hour window represented a liberal view and that the 2009 document cited by the plaintiff's expert was a science advisory, not a guideline. He opined that the patient was absolutely disqualified from TPA based on the prior cerebral hematoma and craniotomy. He noted the stroke scale score of four meant this was a minor stroke, and that the risks of TPA far outweighed the benefits. He described the stroke mechanism as small vessel disease, not embolic, with deficits that gradually worsen over 24 to 48 hours in a stepwise fashion, arguing TPA was unlikely to have helped regardless.

SPEAKER_00 19:16

The defense experts' approach reflected a deliberate litigation strategy. By focusing on TPA eligibility, arguing the patient was never a candidate regardless of timing, they effectively sidestepped the triage timeline. Their reasoning, if the three-hour TPA window expired before the patient even registered at 6.19 p.m., and if the prior craniotomy was an absolute disqualifier, then any delay in evaluation after arrival did not change the stroke outcome. This is a defensible position. And it is also the position that left the triage timeline largely uncontested in the trial record.

SPEAKER_01 19:56

I want to build on what Sarah just said. The defense did a good job of focusing on the TPA window and the prior intracranial hemorrhage contraindication. Those were their stronger arguments. The triage questions were a weaker area when viewed from the record. The triage failures were related to the hospital, which had already settled, so those specific issues could not be used as evidence against the PCP in a direct sense, other than to suggest that the triage delay might have been avoided entirely if the patient had arrived by ambulance with EMS pre-notification. That distinction may help explain why the hospital settled before trial. The triage timeline was a point that could be difficult to defend. Now let's look at the TPA standard at the time of the stroke. The three-hour strict position and the 4.5-hour guideline-based position each had evidentiary support, and it is worth understanding both. The FDA approved TPA for acute ischemic stroke within three hours of symptom onset. That was the labeled indication as of August 2015, and it remains so today. The 4.5-hour extension was based on the ECAS-3 trial, published in 2008 in the New England Journal of Medicine, which showed a statistically significant benefit for patients treated between 3 and 4.5 hours, though a smaller benefit than the 0 to 3 hour window. In this case, the plaintiff's expert focused more on the 2009 advisory, but the 2013 AHA slash ASA guidelines incorporated the 4.5-hour window. When trying to establish a standard of care, these guidelines would likely carry more weight than an advisory from years earlier. The only issue for the plaintiff is obviously that the prior intracranial hemorrhage would exclude the patient entirely. I was initially thinking their expert did not do a great job of using the relevant evidence, but it does make sense to me now. That this 2013 guideline would not have helped and actually would have hurt their stance and case for TPA. The defense experts' characterization of 4.5 hours as a liberal view is a litigation framing. In clinical practice, the 4.5 hour window carried a Class 1 recommendation in the 2013 AHA slash ASA guideline, meaning the evidence supported its use and the guideline recommended it for eligible patients. That is not a liberal position. It is a guideline-supported intervention. Whether any individual patient receives it still depends on their clinical profile. And in this case, the patient's prior intracranial hemorrhage likely excluded him from TPA regardless of the time window. But there is an important nuance here that every physician should understand. The FDA had not approved TPA for the 3 to 4.5 hour window. Administering it in that window was off-label use. That is a fact, and it is the kind of fact attorneys will raise in a deposition or at trial. What physicians need to understand is that off-label does not mean below the standard of care. The FDA is a regulatory body. It governs drug approval and labeling. It does not define how medicine is practiced. The same is true of CMS. Its guidelines usually center around reimbursement, not clinical standards. A therapy can be considered the standard of care without carrying an FDA approved indication for that specific use. And a CMS reimbursement rule does not establish what a physician should or should not do at the bedside. The reason this matters is that attorneys may use FDA or CMS language to frame clinical decisions as departures. And if a physician does not understand the distinction between regulatory authority and standard of care, they may concede a point in testimony that they should not concede. These regulatory frameworks inform clinical practice. They do not define it. The standard of care is established by the medical profession through evidence, guidelines, and clinical consensus, and understanding where that line falls is part of being prepared for the medico-legal process.

SPEAKER_02 24:49

By the time of this stroke, this was a 30-year-old traumatic injury.

SPEAKER_01 24:54

Here is the guideline evolution, and I think this is one of the most important teaching segments in the season. Not because it changes what happened in this case, but because it illustrates how the science beneath standard of care arguments evolves. The 2013 AHA slash ASA guideline, table 10, listed history of previous intracranial hemorrhage as an absolute exclusion from TPA, no time frame, no etiology distinction. A hemorrhage from 30 years ago was treated identically to one from 30 days ago. A traumatic hemorrhage was treated identically to a spontaneous one. That language was inherited directly from the 1995 NINDS trial eligibility form, the original trial that established TPA for stroke. It was copied forward through every subsequent guideline without modification. In February 2015, SITSIC, six months before this patient's stroke, the FDA revised the activase prescribing label and removed history of intracranial hemorrhage from the contraindications section entirely. The post-2015 label retained only current intracranial hemorrhage and subarachnoid hemorrhage. A history of prior ICH was no longer a labeled absolute contraindication. The AHA slash ASA did not follow the FDA's lead. In 2016, the AHA published a scientific rationale document that retained the prior ICH exclusion, but the panel included a remarkable concession, and I want to read the exact language because this matters. Similar to earlier reviews of intravenous altiplase exclusion criteria, the literature offers only a handful of cases in the context of larger retrospective reviews. The lack of any data on this issue is possibly the reason the revised FDA label removed any history of ICH as a contraindication and added a warning against recent ICH only. Three things about that passage. First, the AHA's own panel explicitly conceded the absence of an evidence base, only a handful of cases, and the lack of any data on this issue. Second, they acknowledged the FDA had removed the blanket exclusion. Third, despite those concessions, they retained the class three, harm designation, then effectively saying this is potentially harmful on precautionary grounds. The 2018 and 2019 AHA slash ASA guideline updates maintained this exact position. Class III, harm level CEO, expert opinion. And notably, prior intracranial hemorrhage remained the only neurological contraindication in the table without a time-bound threshold. Prior ischemic stroke had a three-month window. Severe head trauma had a three-month window. Intracranial surgery had a three-month window. Prior intracranial hemorrhage had none, meaning the guideline treated a 30-year-old traumatic hemorrhage identically to one from last month, and possibly more importantly, a traumatic one the same as a spontaneous one.

SPEAKER_00 28:29

For the legal analysis, a clinician in August 2015 was working under two authoritative but non-identical documents. The FDA label, revised six months earlier, no longer listed prior intracranial hemorrhage as a contraindication. The 2013 AHA slash ASA guideline still listed it as an absolute exclusion. Standard of care arguments in malpractice cases typically reference the guideline, not the FDA label. But the divergence between the two creates analytical complexity that neither side in this case litigated thoroughly.

SPEAKER_01 29:20

Neither side presented the guideline evolution to the jury in a way that engaged the scientific complexity. For teaching purposes, and this is forward-looking, the 2026 AHA slash ASA guideline published earlier this year moved prior intracranial hemorrhage from an absolute contraindication to a relative one. The new guideline uses a color-coded classification system, green for strong benefit, yellow for moderate, orange for weak, and red for harm, and organizes thrombolysis eligibility into tables of absolute contraindications, relative contraindications, and conditions where benefit likely outweighs risk. Prior intracranial hemorrhage is now listed as a relative contraindication, meaning the decision to offer thrombolysis is individualized based on the etiology of the hemorrhage time since the event, and the risk-benefit profile for the specific patient. Patients with ICH due to modifiable conditions like hypertension or coagulopathy may have greater treatment benefit than risk. The accumulated observational literature, multiple studies and meta-analyses published between 2014 and 2022 showed no measurable increase in symptomatic intracranial hemorrhage in patients with remote prior ICH who received TPA. The evidence base caught up with what the 2016 panel had already acknowledged: the blanket exclusion was precautionary, not data-driven. That does not change the analysis for this case. The 2013 guideline was the standard in effect on the date of care, but it does illustrate why physicians should know where the evidence is strong and where it is precautionary. That distinction determines how a clinical decision is evaluated in litigation. There is one more point to make here, and it is broader than this case. Guidelines are not intended to establish the standard of care in and of themselves. Most guidelines include language stating exactly that, that the guideline is a guide, not a mandate, and is not meant to dictate the standard that all physicians must follow in every clinical scenario. As a physician defendant, be careful not to concede during a deposition or at trial that a particular guideline or professional society is the authority and the standard of care for a specific condition. That concession backs you into a corner that can become problematic, because if you agree the guideline is the standard, then any deviation from it becomes a departure by your own admission. The more defensible position is language that acknowledges every case is unique and that guidelines are part of the decision-making and treatment process. One input among several, alongside clinical judgment, patient-specific factors, and the information available at the time of care. With that said, the standard of care in litigation is evolving. There is a trend towards standards that focus more heavily on published medical evidence in addition to what a reasonably positioned physician would do in practice. Society guidelines, especially those related to high-risk events like stroke and myocardial infarction, can be inferred to represent the standard of care in some jurisdictions. Be aware of that trend because it affects how your clinical decisions may be evaluated.

SPEAKER_02 33:04

What happened next? Determine the outcome of the trial. During direct examination, the plaintiff's counsel asked the plaintiff's expert two departure questions. First, did the PCP depart from the standard of care by not performing a comprehensive neurological examination? The expert answered yes. Second, did the PCP depart by not calling an ambulance? The expert answered yes. And then counsel stopped. The next question, the legally required follow-up, was never asked. The question that was not asked, Doctor. Do you have an opinion within a reasonable degree of medical certainty as to whether the PCP's departures were a substantial factor in causing the patient's neurological injuries?

SPEAKER_00 34:01

The plaintiff must prove two things through expert testimony. That the defendant departed from the accepted standard of care, and that the departure was a proximate cause, a substantial factors in bringing about the injury. Departure alone is not enough. Causation alone is not enough. Both must be established on the record through expert testimony within a reasonable degree of medical certainty. The departure questions were asked and answered affirmatively. The causation question was not asked. The judge identified this gap. His notes indicate the omission occurred at transcript page 334, the point where the direct examination effectively ended without the causation element being established.

SPEAKER_02 34:51

Section 4401. A motion that asks the court to dismiss the case because the plaintiff has not presented sufficient evidence for a reasonable jury to find in their favor.

SPEAKER_00 35:03

A directed verdict, sometimes called a judgment as a matter of law, is the court's determination that even viewing the evidence in the light most favorable to the plaintiff, no reasonable jury could find for the plaintiff on the claim. It is a high bar. But when a required element of the prima fati case is simply absent from the record, when the causation question was never asked and therefore never answered, the court has no choice. The evidentiary record is incomplete.

SPEAKER_02 35:31

The court granted the directed verdict. The case against the PCP was dismissed.

SPEAKER_01 35:38

The clinical questions, whether the PCP should have performed a more comprehensive neurological exam, whether he should have called an ambulance, whether those decisions contributed to the patient's outcome. Those questions were never weighed by a jury. The departure opinions were on the record. The expert had said yes to both, but the causation link, the bridge between what the physician did and what happened to the patient, what he was not established. The directed verdict was procedurally correct. That is not a commentary on the underlying medicine. It is a statement about the legal process, about the evidentiary requirements that must be met for a case to reach a jury. And that is something every physician should understand because the legal system evaluates medical care through a framework that has its own rules, its own required elements, and its own procedural gates. Understanding those rules is part of what, on the record, exists to teach.

SPEAKER_02 36:38

The judgment was entered, dismissed with prejudice. The hospital had settled for just under $500,000. The PCP's case ended in directed verdict, a procedural outcome based on the evidentiary record, not a jury's assessment of the clinical facts.

SPEAKER_01 37:19

This might be a case where neither side was very concise with their stance and their arguments, so the outcome may not have been any different if a jury was able to deliberate. The primary care physicians' involvement and causation were never really argued well. For us as physicians, trying to learn from the case, I would just say, be careful how you send a patient to the emergency room, and be careful when giving oral blood pressure medications to a patient that you are planning to refer to the emergency room. Dropping the blood pressure in a patient with an evolving acute ischemic stroke can definitely make it worse, and a plaintiff could make a strong argument that it is a deviation from the standard of care and approximate cause, or at least reasonably contribute to a worse stroke outcome. In this case, I don't think this theory was argued effectively.

SPEAKER_02 38:45

It is not medical advice, legal advice, or professional advice of any kind. And it does not create an attorney-client, physician-patient, or other professional relationship. Any discussion of cases, outcomes, standards of care, statutes, or regulations is general in nature. May be incomplete and may vary by jurisdiction and over time. Listeners should consult their own attorney, malpractice carrier, risk manager, or qualified clinician for advice on any specific matter. Any case discussions are based on public records, de-identified information, or educational reconstruction. The views expressed are those of the speakers and do not necessarily reflect the views of any employer, hospital, health system, insurer, or affiliated organization.