Medical Malpractice in Emergency Room Care
Were You Injured by Substandard Medical Care?
When people are severely sick or injured, they must go to an emergency room for treatment. Unfortunately, sometimes instead of making a patient better, a doctor’s errors may result in even greater harm.
When a doctor or nurse is negligent, and a medical mistake occurs, the negligent medical provider and the hospital may be liable. If you believe you have been a victim of malpractice, call an experienced medical malpractice emergency room care attorney. You need a skilled, compassionate, and zealous attorney on your side. There are strict time limits on filing cases, so consult the experienced medical malpractice attorneys at the Levin Firm without delay.
How Do You Know if You Are a Victim of Medical Malpractice?
You may think that something is wrong with the care you received in the emergency room.
If you believe your healthcare provider was negligent, ask yourself these questions:
- Were you diagnosed correctly? Perhaps your doctor diagnosed the wrong condition or even told you there is nothing wrong when there actually was. Misdiagnoses may result in delayed or improper treatment.
- Did your doctor advise you about all known risks? You are entitled to make an informed decision about your care. To do this, your doctor must tell you about the benefits, risks, and possible alternatives. If you had known all the pertinent information, would you have made a different choice about your treatment?
- Was your treatment the most appropriate and up-to-date treatment available? Medical advances happen so frequently that doctors and other healthcare providers may use old or outdated treatments because they have not kept up with developments in the field.
- Did your healthcare provider make a mistake when performing a procedure?
Learn as much as possible about your health condition and any upcoming procedures. Document your symptoms. Think of questions before your appointments. Don’t hesitate to get a second opinion.
If You Were a Victim of Medical Malpractice
- Document everything. Injuries and illness can cause stress, and you might forget details. Document dates, times, names, treatments, medications, and anything else that might be important information. Try to keep notes, because later you might not remember. You may feel like you are recording too much information, but you never know when a detail may be important. It may also help reduce your stress. If someone is with you, ask them to take notes on your behalf.
- Ask questions. Do not be afraid to ask questions and keep asking them as necessary because you have a right to know the answers.
- Request a copy of your medical records. When requesting copies, no explanation is necessary. You do not need to explain that you are considering a lawsuit. Once you have your records, review them to make sure they are complete. Again, you may have to be persistent to get records from both doctor’s offices and hospitals.
- Call the Levin Firm. We’re happy to review your case, for no charge, and if we feel you have a valid claim, we can pursue compensation for you on contingency. You will pay nothing unless we recover compensation for you.
The Law Regarding Medical Malpractice and Emergency Room Care
The legal definition of medical malpractice in Pennsylvania is “negligent or improper treatment by a healthcare professional that deviates from accepted medical care standards and results in an injury to the patient.” It can be complicated to define “proper treatment” since every patient is unique. To establish that a patient was the victim of medical malpractice in an emergency room setting, the patient or their family members must prove three basic elements:
1. That a doctor-patient relationship existed. Who counts as a patient is a complex legal question that has major implications for determining when a physician has a duty to treat, when a patient can sue a doctor for malpractice, when a physician “abandoned” a patient, and other serious matters. Proving that there was a doctor-patient relationship also establishes the nature of the duty that the doctor had toward the patient. Generally, mutual consent between physician and patient creates the relationship.
The American Medical Association (AMA) suggests that there is a relationship “when a physician affirmatively acts in a patient’s case by examining, diagnosing, treating, or agreeing to do so.” For example, the injured person can meet this requirement by proving that the doctor in question was the attending physician who examined or treated them upon their arrival at the emergency room.
However, in certain circumstances, a limited patient-physician relationship may exist without the patient’s explicit agreement.
Such circumstances include:
- When a physician provides emergency care or provides care at the request of the patient’s treating physician.
- When a doctor provides medical care for a prisoner under court order.
- When a physician examines a patient in the context of an independent medical examination, where, pursuant to ethics guidance, there is a limited patient-physician relationship.
2. That the emergency room treatment involved negligence. According to Pennsylvania law, a healthcare professional commits medical malpractice when they fail to meet the generally accepted standard of care used by other medical professionals in the same field under similar circumstances. Several factors affect the standard of care, including the patient’s prior medical history and age. However, the standard of care expected of emergency room doctors is often different from the standard of care expected of a doctor in a less stressful environment.
In an emergency, many issues can arise. For example, if a patient goes to see a primary care doctor for a chronic problem that is not life-threatening, the doctor typically orders a series of tests to determine the possible cause of the problem. However, in an emergency, the patient’s condition may be so acute that there is insufficient time for tests that take time to come back.
Of course, the doctor is still obligated to perform tests to try to identify the problem, but they must also take the circumstances into account. The patient usually needs to offer expert testimony to establish the correct standard of care in their particular situation and how the medical provider deviated from that standard of care.
3. That the doctor’s negligence caused the patient’s harm. For a victim to recover for medical malpractice, they must show that they suffered some type of harm. Harm varies widely from one case to another, but it may include the need for additional medical treatment, corrective medical care, and other personal harm such as lost wages or pain and suffering.
The Emergency Room Environment
If you have ever visited an emergency room, you know that the atmosphere can be chaotic. Patients may be seeking medical care because of accidents, sudden illness, violence, or other extremely serious medical issues. Medical care can be complex under any circumstances, but in an emergency room, assessing and treating a medical problem is especially difficult. Staff may fail to take a detailed medical history or review medical records thoroughly.
In an urgent situation, the doctor may need to act quickly. Therefore, an emergency room doctor may have slightly more leeway than a doctor who has had the opportunity to consider all possible courses of treatment. However, if a doctor provides substandard care to a patient, they may still be liable for medical malpractice.
In an emergency room setting, patients come in with a wide variety of illnesses and injuries. The pace of work tends to be fast and high-pressured, so emergency medical care generally has higher error rates than other medical specialties. Studies have shown that emergency medicine has higher rates of error than most other medical specialties, and an estimated half of all medical malpractice injuries occur in emergency rooms.
Researchers have found that Americans who need medical services go to an emergency department about half the time. The Centers for Disease Control records the latest emergency department statistics and states that in a recent year the United States’ emergency rooms saw:
- 139 million visits;
- 40 million injury-related visits;
- 14.5 million visits requiring hospital admission;
- 2 million visits requiring admission to a critical care unit; and
- Emergency room providers treated and released thousands more.
Emergency room statistics have changed since the COVID-19 pandemic began. The National Syndromic Surveillance Program, in collaboration with the Centers for Disease Control and Prevention, found that emergency department visits dropped 42 percent from January 1 to April 30, 2020. Reductions in emergency department utilization could mean that patients are not seeking care for serious health conditions, including those unrelated to COVID-19, that patients may be avoiding the emergency room for non-emergency conditions, or a displacement of emergency room care to other venues, such as telemedicine visits.
Causes of Medical Mistakes in Emergency Rooms
Due to the high-pressure nature of emergency rooms, medical errors are more likely to happen than in other health care settings.
Many factors may contribute to emergency room mistakes, including:
- Stressed or fatigued personnel.
- Insufficient staffing.
- Inexperienced or poorly trained staff.
- Missing or inadequate equipment or resources.
- Shortage of hospital beds and space for patients.
- Failing to follow standard protocol.
- Rushing between patients.
- Inappropriate medications or improper doses. Poor handwriting, poor communication, and simple error may result in a patient receiving the wrong medication. The wrong medication in an emergency room can cause severe or fatal injuries.
- Surgical errors. Surgical errors happen in all types of surgery. Emergency room physicians are not held to the same standard for surgery as specialists; however, they are held to the standard of knowledge and care of other emergency room surgeons. During surgery, anesthesia errors are also common.
- Communication failures. Once a patient is treated in the emergency room and released, it is easy to move on to the next emergency, and the previous patient is no longer a priority. The term “clinical handover“ means “the transfer of professional responsibility and accountability for some or all aspects of care for a patient, or group of patients, to another person or professional group on a temporary or permanent basis.” There may be communication failures at several points, such as between work shifts, between clinical settings, between different health care institutions, and between various health professions. Emergency room doctors and staff frequently fail to follow-up with the patient or the patient’s primary care providers to ensure that potential problems are examined in detail.
Triage means that the emergency room staff must determine who needs medical care first based on the severity of their illness or injuries. For example, medical professionals will generally care for a person having a heart attack or suffering from a gunshot wound before someone with a sprained ankle.
However, mistakes made during this initial and crucial step can snowball into a serious problem. A negligent act or omission by emergency room personnel can turn a minor ailment into a more severe illness if, for example, the doctor misdiagnoses an injury.
Triage errors can include:
- Failure to take an adequate medical history.
- Failure to perform an appropriate physical examination.
- Failure to recognize life-threatening conditions.
- Failure to perform tests or collect the necessary data.
- Jumping to conclusions about a patient’s condition without carefully considering other likely, dangerous medical conditions.
- Misdiagnosis, delay in diagnosis, or failure to diagnose.
- Delay in performing testing and treatment.
- Failure to consult specialists promptly.
- Laboratory errors.
- Failure to properly treat and monitor a patient.
Another problem that often occurs in the initial stages of emergency room treatment is “patient dumping,” or turning a patient away due to the inability to pay for services.
The Emergency Medical Treatment and Labor Act (EMTALA) applies to any hospital facility that receives Medicare funding. It prevents hospitals from limiting or refusing treatment to patients based on their ability to pay or insurance status and transferring them to other facilities. This is a federal statute that says that an emergency room may not turn away someone who needs medical care, even if the person can’t pay for services and/or does not have health insurance.
Under EMTALA, a doctor cannot release or transfer the patient until their condition has stabilized. For women in labor, that means the hospital must care for the woman until she delivers her baby and both mother and baby are medically stable. Once stabilized, the hospital can legally release the patient or refuse further care, so long as the refusal is not discriminatory, for example, because of a person’s race or religion.
The American College of Emergency Physicians conducted a study that found another disturbing trend called “boarding,” which means admitted patients are kept on stretchers in hospital emergency departments for hours, directly affecting the length of their hospital stay and their mortality rate.
Emergency Room Malpractice Injuries
Some emergency room injuries arise from the patient’s underlying condition. Others arise solely from medical mistakes.
It is not possible to list all of the injuries that can result from emergency room malpractice, but some common injuries include:
- Severe cardiac damage or death from an undiagnosed heart attack or embolism;
- Paralysis or death from undiagnosed stroke or spinal cord compression (Cauda Equina syndrome);
- Loss or severe damage to limbs or organs due to misdiagnosis;
- Contaminated blood transfusions;
- Mishandled surgeries or other medical procedures;
- Longer recovery times;
- Worsening of the condition;
- New illnesses and injuries; and
Medical Malpractice in Emergency Room Care FAQs
Malpractice is a problem in every area of medicine, but particularly in emergency room care. The emergency room is a fast-paced and intense environment. Patients need urgent medical care, sometimes to keep them alive. What happens when the doctors and nurses we count on to help us end up hurting us? If you have spent time in an emergency room, you may have questions about the possibility of medical malpractice. Below are answers to some common questions.
What are the most common emergency room medical malpractice allegations?
The most common medical malpractice claims coming out of emergency rooms have to do with diagnosis, such as the failure to diagnose, diagnosing delay, or providing the wrong diagnosis. In some cases, it involves the doctor’s failure to obtain a consult.
Another common patient allegation is mismanagement of treatment, such as failing to explore an infected wound. Some cases arise from a medical care provider performing a procedure incorrectly, such as intubation or inserting an IV. Others involved the failure to order antibiotics when needed or initiate fibrinolytic therapy in acute stroke patients.
Health conditions that result in the highest number of claims include acute myocardial infarction (5 percent), fractures (6 percent), and appendicitis (2 percent).
What do you have to prove in an emergency room medical malpractice claim?
Nobody is perfect, but the law does expect emergency room personnel to provide each patient with treatment and advice that meets the applicable “medical standard of care.”
That means that emergency room professionals are legally required to provide patients with care that is consistent with the level and type of care that a medical professional of reasonable competence and skill in the same field would do in the same situation, with the same resources. When a medical professional is negligent and provides care that falls below this standard, they may be liable for the harm and damages that medical mistake caused.
To prevail in a medical malpractice lawsuit over emergency room medical malpractice, a patient must prove each of these elements of negligence:
- The provider owed the patient a duty of care.
- The provider breached this duty by providing substandard medical care.
- This breach caused the patient harm.
- As a result, the patient suffered damages.
Why are emergency room medical malpractice cases complicated?
The law holds emergency room medical providers to a slightly different standard of care than non-emergency medical providers. This is not because their work is any less important, but because they are often in a situation where they have to treat patients immediately, with little information about their medical histories.
However, emergency room medical care providers must provide care consistent with the level of care provided by other emergency room professionals under similar circumstances. In some cases, more than one party may be responsible for malpractice. Cases involving more than one liable party are even more complex.
In a medical malpractice case, the foundation is proving that your injury was a direct result of the medical professional’s negligence. The first question is, was the health care provider negligent? Just because the outcome was not good does not mean there was negligence involved. Proving negligence in a medical malpractice case involves reviewing, analyzing, and explaining complicated medical decisions, standards, and practices.
The patient needs qualified medical experts to testify as to whether the health care provider was negligent and if so, whether the negligence caused the harm. The health care provider may claim that another factor, such as the underlying illness or injury, caused the harm.
The injured person bears the burden of proof regarding issues of negligence and causation. Studies show that jurors tend to give doctors the benefit of the doubt in medical malpractice cases, so it is important to establish these matters conclusively.
Who is liable for emergency room medical malpractice?
When medical malpractice occurs, we tend to look to the physicians. However, other hospital staff may also be liable for emergency room medical malpractice. Any medical professional, such as a nurse, orderly, physician’s assistants, or other emergency room personnel can be sued for medical malpractice. A pharmaceutical company or a medical device manufacturer may be liable if their product caused the harm, perhaps because it malfunctioned or did not carry sufficient warnings.
In some cases, the hospital itself is liable, under the doctrine of “respondeat superior,” meaning employers are accountable for the negligent actions of their employees. This doctrine applies when the negligent act occurred within the scope of the medical professional’s employment. At the time of the alleged malpractice, was the employee on the clock, performing a duty they were hired to perform, or while the hospital was receiving financial benefits from the action?
However, if an employee’s negligence occurred outside the scope of employment, the hospital itself may not be liable, although the negligent employee could still be legally responsible as an individual.
An emergency department medical malpractice claims study, using data gathered by the Physician Insurers Association of America, reported that emergency physicians were the primary defendants in 19 percent of ER claims.
What compensation might be available in an emergency room malpractice case?
A medical malpractice incident can be life-altering and very expensive. The amount of compensation a victim can receive depends on the severity of the harm and the amount of their losses.
The types of potential compensation in emergency room malpractice cases include:
- Medical bills (both past and future);
- Pain and suffering;
- Lost wages;
- Reduced earning capacity for the future;
- Loss of enjoyment of life; and
- Wrongful death damages.
In some cases, the court may award punitive damages to punish the defendant and deter others from similar behavior. In Pennsylvania, the law caps punitive damages at three times the amount of compensatory damages awarded.
What is a certificate of merit?
Along with the complaint or within 60 days of the filing of the complaint, the plaintiff or their attorney must file a “certificate of merit.” This document states that an “appropriate licensed professional” has reviewed the plaintiff’s medical malpractice case and it is their opinion that there is a “reasonable probability” that the health care provider “fell outside acceptable professional standards” and their negligence contributed to causing the plaintiff’s harm.
What is the difference between a trial and a settlement?
A trial and a settlement are two different types of legal processes for concluding your case. More than 95 percent of medical malpractice claims result in out-of-court settlements. A settlement is basically a compromise. It is an agreement between the parties in a lawsuit that ends the lawsuit. Often, the healthcare provider’s malpractice insurer attempts to settle the case.
If you and the other party settle, you will not take the case to court. In exchange, you receive an agreed-upon amount of money from the insurance company for your losses. If the parties do not reach a settlement agreement, then the case goes to court.
People choose to settle cases for many reasons. For both parties, the outcome in court may be unpredictable. Defendants may wish to settle to avoid the risk of a much higher jury award. Plaintiffs may want to avoid the stress of a trial, or just don’t want the matter to continue for years.
What happens in a trial?
Every trial is different, but there are certain common procedures. Before the trial begins, the attorneys for both sides file pre-trial motions requesting that the court rule on issues that affect the trial, parties, evidence, testimony, or points of law. The judge will hear the attorneys’ arguments on the motions and make a ruling. Both attorneys prepare proposed jury instructions with the court, which discuss the applicable law for the case. The attorneys select a jury together.
The trial begins when the plaintiff’s attorney and the defendant’s attorney each make an opening statement, which reviews the evidence they plan to present to the jury during the trial. The attorneys then present their evidence, such as witness testimony, medical records, and other documents. Expert witness testimony from qualified medical experts is crucial in medical malpractice cases. Each attorney makes a closing argument. The judge instructs the jury on the law, and the jury considers the evidence and returns a verdict.
How long will my case take?
Malpractice insurance protects hospitals and emergency room medical providers. The insurance companies have a regiment of lawyers whose job it is to aggressively fight medical malpractice cases. They are usually not particularly anxious to hurry the case along.
Generally, the longer the delay, the more likely that key witnesses become unavailable. Or they may hope that the plaintiff will become disheartened and accept a settlement offer. Medical malpractice cases are very difficult. As a general rule, medical malpractice suits progress slowly, often taking months or even years to conclude.
What is the medical malpractice statute of limitations?
The statute of limitations for Pennsylvania medical malpractice claims is two years from when the patient “discovers or reasonably should have discovered that the injury occurred.” If the case occurred after March 2002, the injured party has up to seven years from the medically negligent act to file a lawsuit.
Therefore, if the injured person discovers the injury more than seven years after the negligent act or omission occurred, the patient cannot file a lawsuit against the medical provider. If you miss the deadline, you’ve lost your chance to pursue compensation, no matter how severe the harm.
Why do I need a medical malpractice lawyer?
An experienced lawyer can quickly evaluate your case and determine whether you have a viable medical malpractice claim.
If we believe you have a viable claim and you decide to work with us, our medical malpractice attorneys and their legal team can move your case forward by:
- Investigating all the circumstances and potential causes of your illness or injury.
- Identifying all of the persons or entities who may be responsible for the harm you’ve suffered.
- Calculating the value of your claim. Attorneys have established relationships with medical experts who can accurately value your claim.
- Dealing with medical providers, insurance companies, and the other party’s attorneys. The process involves a great deal of discussion and a great deal of paperwork. Your attorney can handle these communications on your behalf, keep you advised of any settlement offers, and relieve much of the stress you are facing.
- Negotiating with the other party. Lawyers are experienced negotiators and know how to achieve the best possible results.
- Handling the endless paperwork. The paperwork usually contains a great deal of complex legal and medical language. It is essential to file claims and respond to correspondence from other parties within established deadlines. Also, the process of handling a claim can be extremely time-consuming and exhausting, especially for someone who is trying to recover from an illness or injury. It is easy to get buried in a mountain of paperwork and simply give up and settle for less than you deserve.
- Utilizing the firm’s resources. A malpractice attorney has the resources at their fingertips to obtain the best possible outcome for your case.
- Avoiding mistakes. If you try to handle the matter yourself in the beginning, you may make costly mistakes, which can be difficult or impossible to correct. You want to ensure that your case is handled correctly, the first time and every time.
- Arguing your case before a judge or jury if negotiations fail.
Call Us if Negligent Emergency Room Care Injured You
When a doctor or nurse is negligent and they make a medical mistake, the negligent provider and the hospital may be liable. If you were harmed by negligent care provided in an emergency room, call an experienced medical malpractice emergency room care attorney as soon as possible. You need a skilled, compassionate, and zealous attorney on your side. For a free consultation, call The Levin Firm at (215) 825-5183 or contact us online.