Emergency Room Errors and Terrors
An emergency room visit can mean pounding pulses, a racing heart, and fast breathing—and that’s on the part of the person who’s not the patient. Accompanying a family member to the ER is flat-out frightening if you believe your loved one’s life is in danger. In such a situation, you expect that the emergency room doctors and nurses will do their best in a crisis. And the vast majority of the time, they do.
But emergency medicine, by its very nature, means that decisions need to be made on the fly—and sometimes those decisions are wrong. A wrong decision does not necessarily mean you have a malpractice suit. Mistakes are not the same as negligence. But, because ERs are such pressure-cookers, the issue of medical malpractice as it relates to emergency situations can be different than with your average hospital stay.
What Does Malpractice Mean in the Context of Emergency Medicine?
Emergency medicine sometimes begins with an ambulance and first responders. In most states, first responders (police, firefighters, EMTs, and others) are protected from medical malpractice suits. Lawmakers added these protections so that emergency services could continue, because sometimes mistakes are made in the heat of the moment. In Maryland, first responders are protected by statute if they have completed certain certification requirements. The statute is sometimes called “The Good Samaritan Act” and provides immunity from mistakes and ordinary negligence.
However, the statute does not protect against willful or gross negligence. Recklessness or intentional conduct can make a first responder liable for medical malpractice, although it is usually the responder’s employer who is ultimately responsible.
ER doctors, nurses, and other medical personnel, however, do not enjoy the same protections as first responders. Standard medical malpractice rules apply to those who work in emergency rooms, meaning that it must be proved that a competent medical provider would not have made the same mistake under the same circumstances. In other words, three fundamental things must be proved for ER medical malpractice:
- A doctor-patient relationship existed.
- The treatment involved negligence.
- The patient was harmed by the negligence.
Something you might not know is that hospitals are often sued as employers when it comes to emergency room doctors. Because the patient arrives seeking emergency help that’s not from a specific doctor, and because the hospital often does not inform the patient that the ER doctor is an independent contractor (the norm these days), the hospital therefore becomes liable for the doctor’s malpractice. However, in Maryland, the situation is a bit different. The law will not find the hospital responsible if there is evidence that the patient knew that the doctor was independent.
Why does it matter whether the hospital can be found liable? Because a hospital has more ability to pay than an independent doctor’s practice does.
Victims of all medical malpractice cases can claim compensatory damages, which are amounts of money paid for the actual loss, including the cost of past and future treatment, rehabilitation, drugs, domestic and nursing services, and expenses associated with the injury, including loss of future income. Compensatory damages can also include payment for hard-to-estimate costs such as loss of consortium and pain and suffering.
Punitive damages are awarded in order to punish a medical practitioner who is found guilty of malicious intent. Punitive damages are rare and are meted out only in extreme cases.
Common Emergency Room Cases
Medical malpractice in the ER can arise for many different reasons. However, most cases can be boiled down to resulting from just a few common practices:
- Missed or delayed diagnosis. This reason is the most common one cited in malpractice cases, but the reasons behind a missed or delayed diagnosis can involve a number of factors. One review of 122 closed malpractice cases showed that the most common reasons for a missed or delayed diagnosis were: failure to perform the appropriate diagnostic test, failure to take an adequate medical history, failure to do a proper physical exam, failure to obtain a consultation, and incorrectly interpreting the results of a test.
- Medication and laboratory errors that result in improper treatment.
- Surgical errors.
- Incorrect blood type or contaminated blood transfusion.
- Inadequate number of staff, inadequate training of staff, or inadequate/unsanitary facilities.
- Inadequate record keeping, patient tracking, and medication tracking.
- Delay of treatment. Waiting in an emergency room is a given if your case is not a true emergency. But when treatment is delayed, it is often due to a missed diagnosis, as in the case of one man who died of complications resulting from an aortic dissection that was not properly diagnosed. His family was awarded $1.5 million.
- Refusal to treat/patient “dumping.” Any hospital that receives Medicare funding—which is most hospitals these days—is subject to the federal Emergency Medical Treatment and Active Labor Act (EMTALA). Under EMTALA, a patient cannot be turned away for a lack of ability to pay. Instead, the patient must be medically stable before they are released. Not doing so is called “dumping.” Any violation of this law can lead to liability. (Note that, under EMTALA, only the hospital, and not the doctor, can be found liable.)
Avoiding Bad Outcomes
Sometimes you can avoid potential malpractice by simply speaking up while you are in the hospital. While doing so is more difficult—perhaps even impossible—when you are the one enduring the emergency, we do have some suggestions to keep in mind for the family member or friend who may be there with you:
- Talk with the medical staff to make sure they have the patient’s full story, including a complete list of current medical problems and medications.
- Check treatment instructions so that you know exactly what the patient is supposed to do after you leave the hospital. Find out why certain medications were prescribed, and what the dosing instructions are.
- Keep your own record of all tests done and what the results were, for follow-up care later with the patient’s primary care physician.
- Details matter. If you don’t understand something, ask, and don’t leave until you are satisfied with the answers you receive.
Perhaps the most important takeaway is to speak up whenever something doesn’t feel right to you, or if you think that the medical professionals are misunderstanding the patient’s situation. Make sure you are heard. Your loved one is depending on you.
Emergency Room Error? Let “The Injury Lawyer” Help You.
An experienced medical malpractice attorney will be able to listen to the facts of your case, conduct a thorough investigation, and help you devise a legal strategy for obtaining compensation for your injuries. Due to the involvement of insurance companies and defendants who can afford a strong legal team, it’s a good idea to equip yourself with an attorney who has extensive experience when it comes to medical malpractice. Not every medical malpractice claim will hold up in court. However, the only way to determine this is through a thorough case review.
The law offices of Maryland attorney Steven H. Heisler stand ready to help you. Interested in more information on whether you have a valid medical malpractice claim? Contact Baltimore medical malpractice lawyer Steven H. Heisler today for a free case consultation at (410) 625-4878, or use our online contact form.