Emergency Room (ER) Malpractice and Compensation for Injuries

Most of us will have to visit a hospital emergency room at some point in our lives. We'll put up with the long wait and overcrowding, because we want top-level care for our medical emergency. Unfortunately, while we don't think much about it, ER malpractice happens all the time. Emergency room errors can exacerbate a patient's existing injury, or result in a completely new medical condition.

Common emergency room errors include:

  • Understaffing
  • Inadequate training of admitting personnel
  • Sub-standard patient tracking, or "triage"
  • Misdiagnoses
  • Medication errors
  • Unsanitary conditions
  • Inadequate diagnostic tools
  • Patient "dumping"

Hospitals have written policies and procedures for managing their emergency rooms. They set the medical standard of care and apply to everyone, from the janitorial staff to the doctors and nurses treating patients.

While on paper, emergency room policies may appear to ensure the safety of patients, in the real world they can be lacking. Admitting staff, doctors, and nurses often must interpret hospital policies in a way that best serves patients.

In some cases, deviating from written policy is understandable. Emergencies require immediate decisions, with little time to worry about the written word. In other cases, deviating from policy, or the "medical standard of care," established by the hospital is unacceptable, especially when the deviation results in undue harm to a patient.

Example: Denied pain medication

(Hospital policy requires emergency room doctors to give pain medication to patients with severe acute pain. Patients should never be allowed to suffer, per the hospital's medical standard of care.)

John went to the emergency room complaining of severe acute pain in his back. After examining him, the doctor refused to give him pain medication, and sent him on his way.

In this case, the doctor deviated from the medical standard of care for emergency room treatment. He believed the patient demonstrated "drug seeking behavior," and was misrepresenting his symptoms. When the doctor turned John away, he did so while advising the patient to seek help for his addiction.

In this instance, the doctor's deviation from the medical standard of care was acceptable, and was not negligent. As a result, neither the hospital nor the doctor would likely be found liable in any lawsuit John filed.

Example: Unaddressed chest pain

(Most hospitals require admitting staff to immediately admit patients complaining of chest pain, even when doing so means the patient will be seen ahead of others who may have been waiting for hours. This is part of hospital "triage" procedure.)

Bob went into the emergency room with severe chest pain. Instead of following the medical standard of care and immediately admitting him, the admitting nurse told him to take a seat and wait until his name was called. While waiting, Bob collapsed and died.

In this case, the admitting nurse violated emergency room triage policy and deviated from the medical standard of care. Her act of negligence resulted in the death of a patient. The admitting nurse committed ER malpractice, and the hospital would be liable for Bob's wrongful death.

Potential for ER Malpractice

Emergency room doctors and nurses are often on duty for up to twelve hour shifts. Overwork and lack of rest can lead to misdiagnoses, not recognizing symptoms, and failure to provide necessary treatment.

In emergency medical care, time is of the essence. Doctors and nurses must quickly move from one patient to another, sometimes without having enough time to thoroughly wash their hands, or properly sterilize surgical tools and other devices. Bacteria on these surfaces can enter even the smallest wound, resulting in a serious staph infection.

Because of the constant flow of people, many with fevers, infections, and other easily transferable medical conditions, the janitorial staff may not be able to keep up with disinfecting the environment. As a result, otherwise healthy patients and their family members may be subject to infectious diseases and viral illness.

Patient dumping

"Patient dumping" is unethical and illegal. It occurs when a patient comes to a private hospital ER with a true medical emergency, but because of inability to pay or provide insurance, is turned away. Patients are sometimes forced to drive to a state or county-run hospital miles away, during which time their condition can worsen. Often these patients are either too embarrassed, or don't know enough to file a complaint.

Under the Emergency Medical Treatment and Active Labor Act (EMTALA), any hospital which receives Medicare funding cannot turn away any patient, regardless of their ability to pay. Patients unable to pay for treatment must be at least stabilized before they are discharged. In the case of a pregnant woman, the hospital must deliver the baby and stabilize the mother and baby before turning them away.

Violations of EMTALA can result substantial fines and penalties, including the loss of Medicare funding, which provides millions of dollars each year in revenue for most hospitals.

Your rights as a victim of emergency room malpractice

Most doctors, nurses and administrative personnel are directly employed by the hospital. These employees are paid by the hospital to do a job, and because of that payment arrangement, hospitals become liable for patient injuries caused by these employees.

This liability falls under the legal doctrine of "respondeat superior." This means employers can be held liable for the negligent actions of their employees, as long as they are "acting within the scope of employment."

If the emergency room staff were performing their duties as employees when they committed an act of negligence resulting in a patient's injury, the hospital will be liable for the injured patient's damages, which can include:

  • The cost of present and future medical bills
  • Out-of-pocket expenses (e.g. medications, wheelchairs, home nursing, etc.)
  • Present and future lost wages, including long-term disability
  • Pain and suffering
  • Punitive damages

If an employee commits an act of negligence while acting outside their scope of employment, however, things may be different. In this instance, the hospital may escape liability for the injured patient's damages.

Example: Within the scope of employment

While operating, an emergency room doctor left a surgical tool inside a patient. This mistake caused the patient much unnecessary pain and discomfort. In this case, the hospital would be liable under the doctrine of respondeat superior. The doctor was acting in the scope of his employment.

Example: Outside the scope of employment

An emergency room doctor was under the influence of cocaine before operating on a patient. The doctor had a stellar reputation as a competent surgeon, with no known history of drug abuse. During surgery, the doctor severed the patient's femoral artery, causing the patient to bleed out and die.

Under these circumstances, the doctor was not acting within the scope of his employment. Performing surgery while intoxicated was strictly prohibited by hospital policy, and considered a criminal act of assault on a patient. The hospital probably would not be liable for the wrongful death of the patient.

Proving ER Malpractice

To receive compensation for injuries sustained in a hospital emergency room, a patient must be able to prove the following elements:

  1. The hospital had a duty of care to ensure the patient would not be harmed while being treated.

  2. The hospital breached that duty of care.

  3. As a result of that breach (the negligent act), the patient was injured.

  4. The negligence was the direct and proximate cause of the patient's injury.

  5. The patient sustained real damages.

Get an Attorney

ER malpractice cases should only be handled by an experienced attorney. Do not attempt to represent yourself in any type medical malpractice case. Both the doctor and hospital will be heavily insured and represented by aggressive defense attorneys. Regardless of how strong you believe your proof may be, you can be sure the doctor and hospital will never admit it.

To win an emergency room malpractice case, a lawsuit will have to be filed, followed by pretrial discovery and depositions. Subpoenas for hospital records will have to be served, and you'll need medical experts to testify on your behalf.

Your attorney will pay all pretrial costs out of her own pocket, including professional witnesses who are very expensive. You won't have to pay anything unless, and until your attorney settles your case or wins it at trial. Gather your medical records and seek the counsel of several attorneys, most don't charge for an initial office consultation.

Case Study

Ambulance Accident Liability
Normally, emergency personnel are immune from liability. But if they don't follow protocol, and their negligent actions cause further harm, they can be held liable for injuries.

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