The so-called empty-chair defense is a trial tactic in a multiparty case whereby one defendant attempts to put all the fault on a defendant who plea-bargained or settled before trial or on a person who was neither charged nor named as a party. In its published opinion rendered on July 28, 2017, the Commonwealth of Kentucky Court of Appeals (“Kentucky Appellate Court”) held that it was error for the trial court, at the close of the Kentucky medical malpractice plaintiff’s proof at trial, to grant a directed verdict of negligence against the empty-chair defendant, i.e., finding that the empty-chair defendant owed and breached a duty to the plaintiff.
The Underlying Facts
In November 2011, the decedent went to the emergency room of the defendant hospital, complaining of dark urine, dehydration, and pain and weakness in her arms and legs. While her blood pressure was found to be normal, she was tachycardic (heart rate: 148 beats per minute). The defendant emergency room physician evaluated the decedent, obtained a medical history from her, and ordered lab tests. The emergency room physician’s medical impression was dehydration and myositis (muscle soreness). He ordered two liters of intravenous fluids for the decedent.
Later that morning, when the decedent’s heart rate had decreased but was still elevated (114-118 bpm), the decedent informed the defendant emergency room physician that she had strenuously exercised a few days earlier. Considering this new information, the emergency room physician suspected the cause of the decedent’s symptoms was rhabdomyolysis (the breakdown of muscle fibers due to some physical damage) and diagnosed the decedent with acute hypokalemia (deficiency of potassium in the bloodstream) with additional diagnoses of acute dehydration, exercised-induced myositis, and myofascial pain.
The defendant emergency room physician ordered the decedent’s discharge from the hospital conditioned upon her receiving the second liter of fluids, which was administered to her when the decedent’s heart rate was 124 bpm. At the time of discharge a short time later, the decedent’s heart rate was 132 bpm. The nurse did not advise the defendant emergency room physician regarding the decedent’s heart rate before the decedent was discharged.
At around 7:00 p.m. that evening, the decedent experienced sudden shortness of breath, was unable to move her arms and legs, and was transported by ambulance to the hospital, where she was diagnosed as being in septic shock. Despite aggressive treatment for sepsis, the decedent died shortly after midnight.
The decedent’s cause of death was cardiac arrest secondary to a staph aureus infection in her blood. The origin of the sepsis was later identified as a boil on her buttucks that had been treated weeks earlier but became septic and caused her death.
The decedent’s Estate subsequently filed a Kentucky medical malpractice lawsuit against the hospital, the emergency room physician, and the emergency room physician’s practice, alleging that the nurse was negligent in failing to report the decedent’s elevated discharge heart rate to the defendant emergency room physician, and that had the defendant emergency room physician been so advised, he would have kept the decedent in the hospital long enough to lead to a lifesaving diagnosis.
The defendant emergency room physician settled the medical malpractice claims against him, while continuing to deny liability. The defendant emergency room physician did not physically participate in the Kentucky medical malpractice jury trial yet his liability was still an issue for purposes of apportionment.
Empty Chair Defense
In an empty chair defense case, the medical malpractice plaintiff is no longer motivated to prove the phantom tortfeasor was largely at fault but rather to minimize the comparative fault of the empty-chair defendant (perhaps even prove it did not exist at all), so as to maximize recovery from the remaining defendant, or defendants. Nonetheless, the party who benefits by the jury’s belief in the fault of the empty chair defendant bears the burden of proving by a preponderance of the evidence every element of the empty-chair defendant’s liability, just as if he or she was still exposed to indeterminate liability and still had a presence in the courtroom.
During the Kentucky medical malpractice trial in the present case, the defendant emergency room physician did not testify live but his video deposition was played for the jury in which he explained and defended his actions, denying that he caused or contributed to the decedent’s death; however, he never expressly identified the applicable standard of care applicable to his conduct nor did he testify that he met, or failed to meet, such standard.
At the close of the Estate’s case-in-chief, the defendant hospital asked the trial court to direct a verdict that the defendant emergency room physician had breached the standard of care, arguing that the Estate’s two medical experts had testified during cross-examination that he deviated from the standard of care, and the Estate failed to produce any expert testimony contradicting those medical opinions. The trial court granted the defendant hospital’s motion as to negligence but not as to causation.
The defendant hospital then presented its case-in-chief during which its infectious disease expert testified that the defendant emergency room physician indeed met the standard of care in his treatment of the decedent (this evidence was presented after the trial court had already granted the partial directed verdict that the defendant emergency room physician was negligent).
Nine of the twelve jurors returned a verdict in favor of the defendant hospital. The Estate appealed.
Kentucky Appellate Court Decision
The Kentucky Appellate Court held that the trial court granting the directed verdict when it did was reversible error. The Kentucky Appellate Court stated that the crux of the infirmity of this directed verdict is the trial court’s failure to consider the effect of the shifting burden of proof in an empty-chair defendant tort case: when the trial court granted the directed verdict, it failed to consider all of the evidence in the light most favorable to the Estate, the party opposing the directed verdict, and it failed to recognize the fair and reasonable inferences justified by that evidence.
The Kentucky Appellate Court stated that all of the evidence would have included the defendant emergency room physician’s testimony and, as it turns out, the defense expert’s testimony during the defendant hospital’s presentation of its defense. The trial court should have inferred from the Estate’s evidence in its case-in-chief that, during the hospital’s defense, the Estate would continue efforts to establish that the defendant emergency room physician was not negligent and that the decedent’s death was attributable only to the negligence of the defendant hospital. The Kentucky Appellate Court concluded that the directed verdict in this case was premature: empty-chair defendants who have settled are to be treated no differently than participating defendants in regard to what must be proved to apportion fault against them even though the empty-chair defendant will not actually be held liable in the trial, since the empty-chair defendant is literally not on trial.
The Kentucky Appellate Court reversed and remanded the case for a new trial.
Source House v. Jewish Hospital & St. Mary’s Healthcare, Inc., No. 2015-CA-001205
If you or a family member suffered serious harm as a result of emergency room misdiagnosis in Kentucky or in another U.S. state, you should promptly find a local medical malpractice lawyer in Kentucky or in your state who may investigate your emergency room medical malpractice claim for you and represent you or your family member in a medical malpractice case against the hospital and/or the emergency room physician, if appropriate.
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