By Tammie Smeltz
Summary judgment can be an effective litigation tool.
Below you will find a brief description of the legal process for filing a motion for summary judgment, as well as a case study wherein summary judgment was granted.
What is a Summary Judgment?
For years, MLMIC Insurance Company, in collaboration with its defense counsel, has been at the forefront of using summary judgment to successfully obtain early resolutions of medical malpractice cases. Summary judgment is a procedural way to obtain an early resolution of civil cases before trial by motion practice. It can also be used to narrow issues in a case by disposing of those claims by motion. While the motion can be made at any point during litigation, in most circumstances, the defense attorney will serve the motion following the completion of depositions or discovery. The time parameters for moving for summary judgment can vary depending on local rules, judge’s rules or scheduling orders. However, at the latest, the motion must be made no later than 120 days after the filing of a legal document certifying that the case is ready for trial.
The Role of Experts in Summary Judgments
Generally, a summary judgment motion must show there are no material facts at issue and that the standard of care was met. The crux of the motion is dependent upon the expert affidavit. The affidavit can be made by the defendant physician or a medical expert. The expert must opine that the physician/defendant did not depart from the standard of care and/or that any alleged departure was not the proximate cause of the patient’s injuries. The plaintiff will oppose the motion with an expert affidavit as well. Many times, summary judgment becomes a battle of the experts.
The defendant has the burden to show why they are entitled to summary judgment. A judge will grant summary judgment if the defendant can offer admissible evidence showing they met the standard of care and/or that any such departure did not injure the plaintiff.
Case Study: Successful Use of Summary Judgment
The following is a case where summary judgment was granted based on both standard of care and lack of causation.
The plaintiff, in this case, was a 45-year-old male with a past medical history significant for Hodgkin’s lymphoma, GERD, diabetes mellitus and high cholesterol. He presented to his primary care physician’s office with complaints of vomiting, reflux, chest pain and nausea while on a recent camping trip. He told his physician he consumed more alcohol than normal during this trip. The physician felt the patient’s increased alcohol consumption exacerbated symptoms related to GERD and adjusted his reflux medication.
Five days later he presented again to his physician’s office with complaints of chest pain and nausea. He did not have any palpitations, diaphoresis, shortness of breath or radiating chest pain. He was seen by a nurse practitioner who ordered an EKG. The EKG showed an interval myocardial infarction with an ST segment elevation. The patient was immediately referred to a cardiologist for a stress echocardiogram. The patient was not started on any medications such as aspirin or beta blockers.
A cardiologist saw the patient three days later. The cardiologist performed an echocardiogram but decided not to proceed with the stress portion of the test. The echocardiogram showed significant abnormal wall motion of the left ventricle with an ejection fraction of 25%. An EKG taken on that day showed malignant ventricular tachycardia. Despite the significance of these findings, the cardiologist did not immediately send the patient to the hospital. Instead, he placed the patient on Carvedilol and scheduled him for a cardiac catheterization four days later.
Unfortunately, later that evening, the patient became unresponsive. An ambulance was called, and CPR was performed on the way to the hospital, but the patient never responded. He was pronounced dead on arrival. An autopsy showed the cause of death was cardiac arrhythmia secondary to coronary artery disease.
The patient’s wife commenced a lawsuit against her husband’s primary care physician, his nurse practitioner and group, as well as the cardiologist and cardiology group. Regarding the cardiologist, the complaint alleged a failure to diagnose a recent or evolving myocardial infarction resulting in death. The allegations against the primary care physician and his nurse practitioner included failure to recognize the signs and symptoms of a myocardial infarction and failure to emergently refer the patient to a cardiologist or hospital.
MLMIC insured the decedent’s primary care physician, his group and nurse practitioner, but had this case reviewed by both an internal medicine and cardiology expert. The cardiologist opined that both the echocardiogram and the EKG were indicative of an acute or very recent cardiac event. The EKG showed polymorphic ventricular tachycardia with multiple episodes of couplets and triplets. This rhythm should not have been left untreated, and the patient should have been immediately sent to the hospital.
The internal medicine expert felt the standard of care was met. The patient was promptly referred to a cardiologist. This expert also opined that the treatment by the cardiologist, or lack thereof, was an intervening cause of the patient’s death. Because of the favorable internal medicine review, MLMIC requested its defense attorney serve a motion for summary judgment.
MLMIC’s defense attorney served a motion for summary judgment, together with an affidavit from their internal medicine expert. The plaintiff served an opposition to the motion which included an opposing expert affidavit. The co-defendant cardiologist did not serve a motion for summary judgment in this matter, as it was clear he deviated from the standard of care. The motion was argued by counsel, and the judge granted summary judgment for the primary care physician, his nurse practitioner and the group.
Because the MLMIC insureds were dismissed from the case, the cardiologist and his group were the only remaining defendants. The case was settled for $1.4 million. The decedent was a physical therapist and owned his own practice. His wife was employed by the group as the office manager. Additionally, they had a minor child. Damages in this wrongful death case included loss of income for the decedent and his wife, loss of spousal support and loss of parental guidance.
Benefits of the Summary Judgment and Key Takeaways
- Because the primary care team was dismissed from the case, they did not have to appear in court or testify at trial.
- When a healthcare provider participates in a trial, they should be present in the courtroom for the entire trial. A trial could last anywhere from a few days to a month. Since the MLMIC-insured defendants were dismissed from the case, they did not lose any revenue due to the cancellation of office hours.
- When summary judgment is granted, a case is closed without any indemnity payment made on behalf of the defendant. As a result, the healthcare practitioners, in this case, were not reported to the National Practitioner’s Data Bank.
- MLMIC closes its file once the judge’s order and closing papers are filed with the court. At that point, it was no longer necessary for the MLMIC-insured physician and nurse practitioner to report the case to healthcare facilities when applying for or updating credentials.
MLMIC remains committed to the vigorous defense of meritless malpractice claims and the use of summary judgment to achieve early resolutions for its policyholders. If you are involved in a lawsuit and want to know whether summary judgment is recommended in your case, contact your claims specialist or MLMIC-appointed defense attorney.
To review additional MLMIC case studies, see here.