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:
- Inadequate training of admitting personnel
- Sub-standard patient tracking, or “triage”
- 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” 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:
- The hospital had a duty of care to ensure the patient would not be harmed while being treated.
- The hospital breached that duty of care.
- As a result of that breach (the negligent act), the patient was injured.
- The negligence was the direct and proximate cause of the patient’s injury.
- 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.
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.
How Much is Your Injury Claim Worth?
Find out now with a FREE case review from an attorney…
Visitor Questions on ER Malpractice
Almost died waiting at ER… I arrived at a hospital emergency room, waiting room and was taken in and had blood pressure done and temperature. After one and a half hours of being in screaming, arching my back, sweating and being in pain; my husband asked how much longer and the hospital stated at least three more people ahead of... Read More >>
Failure to diagnose back injury… I fell at home and hurt my back so bad that my husband had to pick me up. I could barely move. I went to the ER and waited over 2 hours to see a doctor. Then the doctor was in to see me for about 10 minutes, basically asking if this or that hurt.... Read More >>
Discharged with a misdiagnosis of vertigo when I actually had a stroke? I was involved in a car accident during the summer of 2013. Three weeks after the accident I experienced dizziness, vomiting, excruciating pain in my left ear, and coordination difficulty. I was brought to the emergency department of the local hospital. I was given Antivert, Tylenol, and Nasonex nose spray, and discharged without so much... Read More >>
ER overlooked my broken foot? I fell and broke my foot. I went to the emergency room, where I was told I was fine and given no medicines, ace bandages or crutches. The injury slowed me down tremendously. As a result, I had a hard time making it to tinkle on time and wet myself slightly. This caused a skin... Read More >>
Negligent ER didn’t do x-rays for the object stuck in my throat… I was making dinner, hamburger meat mixed with flour, salt and pepper. I was going to taste a small bite to see if it had enough salt. As soon as it hit my throat I knew I had just swelled something sharp and hard. It was very bad pain all the way to where it... Read More >>
Discharged with undiagnosed tumor blocking my entire small intestine… Last year I went to the emergency room with a stabbing pain in my upper abdomen. The pain was so awful that I was hysterical and couldn’t walk or stand…just laid in the fetal position. After triage, they administered pain medication before sending me for an x-ray and a CAT scan. While I was waiting... Read More >>
Lack of proper examination by doctor in emergency room… I took my 6 yr. old son to the hospital emergency room because his pediatrician’s office was closed. My son had several spreading wounds on his legs, the original injury was on his bicycle 1 week ago, since then several small sores erupted on his legs. In the exam room the nurse walked in and... Read More >>
Liability for surgery mistake resulting in a hemothorax? I went to the emergency room for a collapsed lung. During the procedure to evacuate the air in my chest cavity the PA (Physician’s Assistant) cut an artery causing a hemothorax (collection of blood between my lung and chest wall). I spent 7 days total in the hospital. I underwent surgery for the hemo/pnumothorax and... Read More >>
After x-rays and examination, ER doctor stitched me up with glass still in my hand… On black Friday I cut my hand on a glass pretty bad. I went to the emergency room, got x-rays and the doctor stitched me up. After stitching he said something on the order of, “How did those x-rays turn out?” I just kind of looked at him funny. He went over and looked at... Read More >>
Doctor Stitched My Foot Before Anesthesia Took Effect… I cut the bottom of my foot a half inch deep and 3 inches across. I went to the emergency room and the doctor injected me with a numbing agent in my big toe then started stitching right away. She didn’t wait for the anesthesia to take effect. I almost blacked out from extreme pain... Read More >>
Doctors Couldn’t Remove Glass in My Foot… In July 2011 I stepped on a piece of glass that broke off in my foot. I went to the Emergency Room where the doctor on call tried to remove the glass. He was unsuccessful so I was sent to general surgery. I was put under for the procedure, only to wake up with glass... Read More >>
ER Doctor Didn’t Give Me an MRI… I fell and twisted my leg. I heard 3 pops when it happened. It hurt BAD. This occurred at 11:30pm and I don’t drive, so I waited until the next morning. By that time my knee had popped back into place but I could barely get up and down, or move my leg in any... Read More >>
Complaint for Mistreatment in Emergency Room? I got dizzy and fell at my house. I injured my head when I fell and had to go to the Emergency Room. I wanted to make sure I didn’t have a concussion, and also get some relief from the extreme pain I was in. The ER staff never managed my pain while I was... Read More >>
Doctor Negligence Allows Wound to Heal with Glass Inside… I was fixing a big hole in a glass window. I stuck my hand through to remove the excess glass and some glass fell and cut my wrist wide open. I went to the hospital and they looked at my wrist. They just covered my arm, and they told me to try a different hospital... Read More >>
Medical Malpractice Case: Injection in Sciatic Nerve? I think this is a medical malpractice case. I was given an IM injection in the ER. I questioned the location choice but the injection was given in the same spot anyway and it hit my sciatic nerve. I now can’t use my leg, I have continuous pain due to the injection into my sciatic... Read More >>
In a Car Accident While Pregnant… I was in a car accident on February 20, 2008. We called 911 and for about 45 minutes no one came. My boyfriend was driving the car. I had back pain when the accident happened and later that day went to the emergency room for the pain. I was 2 months pregnant and the MD... Read More >>