February 2023 Affidavit of Martin E. Lutz, MD, FACEP, regarding Jennifer Barnett & “Emergency Medical Care”

PERSONALLY APPEARS before the undersigned authority, duly authorized to administer oaths, comes Martin Lutz, MD, who after first being duly sworn, states as follows:

Introduction & Summary

1.             Plaintiff’s counsel has asked me to address an issue I have not yet addressed in this case: Whether the care provided to Jennifer Barnett meets the following definition of “Emergency Medical Care”:

“Emergency medical care” means bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

2.             In short, the answer is No.

3.             To be sure, Jennifer Barnett was having a brainstem stroke when she arrived at the hospital, and Jennifer therefore was suffering a time-sensitive emergency. Medical providers must respond to a stroke as fast as they can — immediately, if possible. Even so, the care provided to Jennifer Barnett does not meet the definition of “Emergency Medical Care” stated above.

4.             The reason is that Jennifer did not have “a medical or traumatic condition MANIFESTING itself by acute symptoms of sufficient severity, including severe pain, such that the absence of IMMEDIATE medical attention could reasonably be EXPECTED to result in placing the patient’s health in SERIOUS JEOPARDY, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”

5.             To create this affidavit, Plaintiff’s counsel consulted with me about my views and then wrote a draft of this affidavit based on our discussion. Plaintiff's counsel then showed me the draft. I reviewed it carefully and edited it to make sure it correctly states my views.

6.             Beyond reviewing the draft to make sure it correctly states my views, I have not completely edited the sentence structure, wording, style, etc. I chose some of the specific wording, and some was written by the attorney. Regardless of the origin of any specific language, though, I have approved and adopted the language.

7.             I hold all opinions stated here to a reasonable degree of medical certainty — that is, more likely than not. However, the evidence for these conclusions is clear and convincing.

Qualifications

8.             I am more than 18 years old, suffer from no legal disabilities, and give this affidavit based upon my own personal knowledge and belief.

9.             I do not recite my qualifications here. However, my Curriculum Vitae is attached hereto as Exhibit “A.” My CV provides further detail about my qualifications. I incorporate and rely on that additional information here.

Evidence Considered

10.          I have reviewed medical records from Atlanta Medical Center South Campus pertaining to Jennifer Barnett.

“Emergency Medical Care”

The Definition

11.          Plaintiff’s counsel has asked me — as a factual matter — whether the care provided to Jennifer Barnett meets the following definition of “Emergency Medical Care”:

“Emergency medical care” means bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

12.          The definition of “Emergency Medical Care” stated above includes multiple factual requirements. One of those requirements has to do with the likely consequences to the patient if medical attention is not given immediately.

13.          I am not a lawyer, and I do not offer a legal opinion. Rather, I am a physician; I know the plain and ordinary meaning of the words in the definition; and I also referred to a dictionary in forming my conclusions. I offer a factual, medical conclusion about one of the medical issues incorporated into the definition — namely, the likely consequences of a delay in medical attention.

14.          The Merriam-Webster online dictionary gives the following definitions:

a.    The verb “manifest” means “to make evident or certain by showing or displaying.” https://www.merriam-webster.com/dictionary/manifesting.

b.    “Immediate” means “occurring, acting, or accomplished without loss or interval of time: instant.” https://www.merriam-webster.com/dictionary/immediate.

c.     “Expect” means “to consider probable or certain.” https://www.merriam-webster.com/dictionary/expected.

d.    “Serious” in this context means “having important or dangerous possible consequences.” https://www.merriam-webster.com/dictionary/serious.

e.     “Jeopardy” means “exposure to or imminence of death, loss, or injury.” https://www.merriam-webster.com/dictionary/jeopardy.

15.          Putting these definitions together and paraphrasing: One question posed by the definition of “Emergency Medical Care” is from Jennifer’s symptoms in the ED, whether it was reasonable to think any delay of medical attention — even a delay of just a few minutes — would probably put Jennifer in serious danger.  

16.          This is a question of medical fact.

17.          The medical consequences of even a short delay in medical attention is a medical question, for medical experts.

Two Distinctions

18.          In discussing this issue, it is important to keep some basic distinctions in mind.

Severity vs. Urgency

19.          Emergency departments routinely distinguish among patients based on both severity and urgency.

20.          The severity of a condition is not necessarily related to urgency. A condition can be potentially catastrophic but not time-sensitive.

21.          For example, many forms of cancer can be fatal. But cancer rarely requires emergency treatment. Generally, cancer grows slowly, and once the cancer is detected, the treatment window is measured in days or longer — not hours, and certainly not minutes. Cancer is potentially catastrophic, but for purposes of an ED physician would not be considered time-sensitive, although an oncologist with a different frame of reference might consider it time-sensitive.

22.          It can be easy — but it is wrong — to confuse the severity of a condition with its urgency.

Degrees of Urgency

23.          Urgency is not a binary, yes-or-no matter. Urgency or time-sensitivity exists on a continuum. There are degrees of urgency.

24.          “Immediate” need is the highest, most extreme degree of urgency.

25.          “Not time-sensitive” is the lowest degree of urgency.

26.          Most emergency department patients are somewhere in between those two extremes.

Objective Consequences vs. Aspirational Goals

27.          The definition of “Emergency Medical Care” above focuses on objective facts — including the objective consequences of even a short delay of medical attention.

28.          Objective facts are not the same as aspirational goals.

29.          Aspirationally, an emergency department should set a goal of attending to all patients, regardless of severity, as quickly as possible without sacrificing the quality of care.

30.          Aspirationally, an emergency department should set a goal of treating any patient with a time-sensitive emergency as fast as possible — even immediately, if possible.

31.          These goals should be adopted because of the general rule of thumb that earlier care is better. But neither the rule of thumb nor the goals means that any particular delay is likely to cause serious harm.

32.          Violating an aspirational goal does not necessarily cause harm.

The Continuum of “Emergency” Conditions

33.          Emergency departments get patients with widely varying degrees of “emergencies.” At the low end, we get patients who use the ED essentially as a substitute for primary care. At the high end, we get patients with ultra-extreme emergencies. The vast majority of patients are somewhere in between.

34.          Most ED patients do not need, and do not receive, immediate medical attention.

35.          However, a small percentage of ED patients are likely to suffer serious harm if immediate medical attention is delayed by even a few minutes. For example: a patient with a gunshot wound to the chest, a patient who has completely lost her airway and cannot breathe, a patient with a severed femoral artery, a patient whose heart has stopped pumping, and so on. For these patients, a delay of even one minute is likely to cause serious harm. Indeed, if a patient goes into cardiac arrest, in most contexts it would be extreme negligence, if not willful misconduct, for a nurse or physician to intentionally wait 60 seconds before calling for help and taking action.[1]

36.          Such ultra-extreme emergencies occur with only a small percentage of ED patients.

37.          This sort of ultra-extreme emergency roughly corresponds to a level 1 patient on the 5-level Emergency Severity Index (“ESI”) supported by the US Agency for Healthcare Research and Quality.

See generally Gilboy N, Tanabe P, Travers DA, Rosenau AM, Eitel DR. Emergency Severity Index, Version 4: Implementation Handbook. AHRQ Publication No. 05-0046-2. Rockville, MD: Agency for Healthcare Research and Quality. May 2005 (the “ESI Handbook”).

38.          The ESI Handbook states that ESI 1 patients account for only about 1-3% of all ED patients:

39.          The Handbook gives examples of ESI level 1 conditions. The Handbook’s examples are similar to those given above:

40.          The vast majority of ED patients are not in an ESI-1, ultra-extreme emergency condition.

41.          The vast majority of ED patients can tolerate substantial delay of medical attention, with no likelihood of serious harm from the delay. This is partly why ED waiting rooms are often filled with people waiting hours before receiving medical attention.

42.          On the continuum of ED patients, there is also a category of patients with time-sensitive emergencies that ED physicians should respond to as fast as they can — immediately, if possible — but who are not likely to suffer serious harm from a delay of a few minutes.

43.          Stroke patients are in this category. Other examples include gastrointestinal bleeding, acute limb ischemia, immunocompromised patients with signs of infection, and many others. These patients can tolerate a short delay of medical attention. They are not likely to suffer serious harm from a short delay.

Jennifer Barnett

44.          When Jennifer Barnett arrived at AMC South hospital, she was not suffering the sort of ultra-extreme emergency for which even a short delay was likely to cause serious harm.

45.          Jennifer was suffering an ischemic stroke. An ischemic stroke is a potentially catastrophic, time-sensitive emergency. But it is not in the category of ultra-extreme emergencies such that even a short delay is likely to cause serious harm.

46.          An ischemic stroke causes harm over a course of hours, by restricting or blocking blood flow to part of the brain. Serious harm does not occur immediately. To illustrate, in “transient ischemic attacks,” blood flow is restored spontaneously after a substantial amount of time, with no discernible harm to the patient.

47.          The treatment window for stroke is generally at least 4-1/2 hours (for medical thrombolysis).

48.          Aspirationally, emergency departments should set a goal of responding to any potential stroke as fast as possible — immediately, if possible. But that does not mean even a short delay of medical attention is likely to cause serious harm.

49.          As a medical, factual matter, the care Dr. Hamilton provided to Jennifer Barnett does not meet the definition of “Emergency Medical Care” stated above.

50.          Jennifer Barnett did not have “a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”

51.          This is partly why I have concluded that it was not gross negligence for Dr. Hamilton to move slowly in diagnosing Jennifer — because Jennifer did not exhibit such an ultra-extreme emergency.

52.          If Jennifer had exhibited such an ultra-extreme emergency, comparable to cardiac arrest, then it would have been flagrantly, outrageously negligent — even raising a question of willful misconduct — for Dr. Hamilton to allow hour after hour to go by, without obtaining a plausible diagnosis and facilitating treatment. In fact, however, I draw no such conclusion, because Jennifer did not exhibit an ultra-extreme emergency.

                                                                                    Martin E. Lutz, MD, FACEP

SWORN TO AND SUBSCRIBED before me

_________________, 2023

____________________________________

NOTARY PUBLIC

My Commission Expires:

[1] In some limited contexts, it would be appropriate not to respond medically to a cardiac arrest — for example, with a patient with a “Do Not Resuscitate” order.