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Voice of Experience

Voice of Experience: January 2025

Adventures in the Law: A Lawyer Walks into the ER...

Norm Tabler

Summary

  • Misdiagnosis at a hospital can result in wrongful confinement.
  • A misdiagnosis can lead to claims for defamation and emotional distress from a patient.
  • Not all tort claims against a hospital require support from an expert opinion. 
Adventures in the Law: A Lawyer Walks into the ER...
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There are plenty of jokes about how much doctors dislike lawyers. This is not one of them, even though it starts with a lawyer visiting an emergency room. Nor is it a joke about long ER waits, even though it took this lawyer 12 days to be released. No, this is a true story and a real legal case.

A New Jersey lawyer—we’ll call her Mabel—had a pain in her hip, so her sister drove her to the hospital emergency room. The staff asked Mabel’s sister whether there was a history of psychiatric issues in the family. The sister answered that yes, a relative had schizophrenia; what’s more, that relative was not currently on medication and needed psychiatric evaluation.

The ER staffer entered the information in Mabel’s record. The entry was correct except for one thing: Instead of being entered as part of Mabel’s family history, it was entered as Mabel’s own history.

On the basis of the erroneous entry, the hospital staff treated Mabel as suffering from schizophrenia and needing further evaluation and medication. She was involuntarily committed to a psychiatric facility and detained for 12 days.

Once released, Mabel did what any lawyer would do: She sued the hospital. Her three-count complaint alleged medical malpractice, defamation, and infliction of emotional distress. Her complaint noted that as an attorney, she had been subjected to the risk of being put on disability inactive status under a bar rule applicable whenever an attorney is “involuntarily committed to a mental hospital.”

With its answer to the complaint, the hospital demanded what, in that state is called an Affidavit of Merit, or AOM: the opinion of a licensed professional that the alleged action or inaction fell outside acceptable professional standards.

Mabel responded with a motion for an order waiving the AOM under the “common knowledge exception.” The trial court ruled that nothing in the record supported the claim that the hospital acted intentionally. Rather, the complaint was simply a malpractice claim, and a malpractice claim must be supported by an AOM.

Because Mabel hadn’t submitted an AOM and hadn’t shown that the defendant acted intentionally, the court dismissed her case. She then did what any lawyer would do: She appealed.

The appellate court discussed the common knowledge exception to the AOM requirement, noting that it applies when the alleged negligence is “readily apparent to anyone of average intelligence.” Examples are when a dentist pulls out the wrong tooth or a pharmacist fills a prescription with the wrong drug.

The court concluded that Mabel’s case clearly fell within the common knowledge exception. You don’t need a medical degree to know that it’s negligent to put someone else’s medical history in a patient’s medical record!

The appellate court also reversed the trial court’s dismissal of Mabel’s defamation and emotional distress counts. Mabel had properly alleged that the defendant made defamatory statements about her to mental health professionals and facilities, namely that she was schizophrenic and needed psychiatric evaluation and education. As a private, nonpublic figure, she need not allege that the defamation was intentional.  

As for emotional distress, Mabel’s complaint clearly established the elements of a viable claim: The hospital owed her a duty, it breached that duty, and she suffered distress as a result of that breach.

The dismissal of Mabel’s case was reversed.

There’s no truth to the rumor that after diagnosing Mabel as schizophrenic, the hospital billed each of her multiple personalities separately.  

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