Malpractice In the Emergency Room

Most of us believe that if we have to go to an Emergency Room with a serious or life-threatening condition, we (or the affected family member) will be treated by an effective team of medical professionals, who will provide the standard-of-care according to the best of their abilities.

Most of the time this what happens, and we have tremendous respect for the diligent, compassionate professionals who do their best in difficult circumstances, and whose skill can often make the difference between a good outcome or a tragedy.

But unfortunately, this is not always the case.  What do you do if you or a family member has encountered care that fell below the expected, professional standard?  This article is intended to offer some context for individuals and families, to understand if their experience sounds like something that should not have occurred, and whether it may be appropriate to discuss with an attorney.  

What Is Emergency Room Malpractice?

Emergency room malpractice refers to negligent actions—or failure to act—that deviate from the professional standards of care in an emergency room setting, ultimately causing harm to a patient.

ERs are often dynamic environments where medical professionals must act quickly. However, this does not mean that the ER environment (or care) should be chaotic, or random, or neglectful.  While a lot is asked of an ER physician (or ER nurse, or other healthcare professional in the ER context) it is the nature of the field that such professionals are expected to be able to prioritize their activities. To devote the bulk of their attentions, when needed, to those most in need of urgent attention.

The “Triage” process and all medical decision making by subsequent providers should continue to direct the finite resources of the Emergency Medical Department to where they are needed most.

So, while recognizing the unique demands and time sensitive nature of ER care, whether care rendered in the Emergency Department met the “standard of care” or was malpractice, often depends on whether the professionals in the ER were making reasonable, early assessments on which patients should be receiving the most care, and whether timely attention was in fact devoted to the most time sensitive and serious cases.  

Recurring Examples of ER Malpractice

Here are some common scenarios where emergency room malpractice may occur:

Delayed Attention to Life Threatening Emergency

Failing to provide immediate, physician evaluation for a potentially urgent, life-threatening condition such as a heart attack or stroke. In such cases minutes (or seconds) can make the difference between life, death, or life-with-disability.  

Improper Diagnosis or Not Making a “Differential Diagnosis”

Sometimes the physician starts out on the “wrong track” by not considering whether something that may be minor, might also be something major (or life threatening). Often, the standard-of-care is to rule out a potential life-threatening emergency before simply assuming that the condition is minor –even if a minor condition is more likely . [1]

Failure to Order Needed Tests

Skipping important diagnostic tests can lead to missed or inaccurate diagnoses.  Often a simple blood test such as “complete blood count” will find evidence of infection, and is the “standard of care” if there are other possible signs of infection, such as fever, or history of recent trauma. [2]

Medication Errors

This includes prescribing the wrong medication, incorrect dosages, or dangerous drug interactions. Giving the wrong medicine to the wrong patient may come down to nursing malpractice, or an inexperienced resident giving an incorrect medication Order.  Such incorrect orders, or misfilling an Order can result in severe harm or even death. [3]

Improper or Premature Discharge

Emergency Rooms are supposed to handle true emergencies. And is acceptable to “discharge” a patient for follow up care as an outpatient when a true emergency has been sufficiently “ruled out.” But it is a recurring pattern of ER malpractice when sometimes busy (or burned out) Emergency Room physicians may “discharge” patients without sufficient workup, in order to lessen their patient load, or simply by not taking the potential for urgent problems seriously enough.  Improper discharge can lead to a worsening condition or mortality. [4]

The Difference Between “Doing the Best We Can” and Malpractice in the Emergency Room

Emergency rooms are different from outpatient care settings in that they’re typically dynamic, often fast-moving environments.

We do take into account that it’s impossible for even the best doctor to be “right” 100% of the time, particularly in a crowded Emergency Department.  However, this is no excuse for a doctor not doing his or her best, or not applying a “differential diagnosis” to consider and rule out a potential life-threatening condition.  Balancing these considerations, we bring cases when, by our analysis (and confirmed up by expert review) we believe the medical professionals have fallen below the accepted standards of care.  For example, if a doctor dismissed chest pain as “probably indigestion” without considering or ruling out cardiac conditions, or if an Emergency Department physician doesn’t consider potential infection for a patient with a significant laceration and fever.

If You Suspect ER Malpractice

If you suspect emergency room care did not meet medical standards, you might feel overwhelmed or uncertain about where to begin. Here are four steps to take:

1. Make Notes of Your Best Recollection, Marking Them “For Legal Consultation”

The medical records should document the main events of care. Typically, we can prove a case (of merit) based primarily on the records kept by the providers themselves. However, those records can be inaccurate or tell only part of the story.

Were you, or someone else, repeatedly asking the nurse to look at something that worried you, that later turned out to be the source of a problem?  Did one of the doctors admit that he or she was distracted by a non-work concern, or blamed some other provider for missing something?

These recollections can be extremely helpful and help fill in gaps in the records –and sometimes even serve to disprove errors in the medical chart itself. So its important, if you have real questions on the quality of care rendered, to make notes of your best recollections of what you consider key events at the time.

But just as importantly, mark these notes with the heading “for my attorney” or “for legal consultation.” This way, your notes will be privileged.  So you can be free to record your best recollection for discussion with your legal counsel later on, without being concerned that your informal notes will become public documents or have to be provided to opposing attorneys. This is not, to be clear, because we are seeking to “change your story.” But when early notes are not properly protected, they can be “nit picked” by opposing counsel in an unfair manner, to cast doubt on your recollections as a whole.

Or put another way, the doctors have legal “privilege” to make notes to themselves, to discuss with their attorneys later, which we won’t have access to as well.  Doctors understand this and use this tool to their best advantage as well.  So recording your best recollection early on and protecting your early and informal notes for discussion with your own attorneys, is simply leveling the playing field.

2. Seek Further Medical Advice If Still Having Medical Problems, Particularly If You’re Not Sure of Your Diagnosis

We pride ourselves on being able to “solve the puzzle” of what happened during medical care, and whether substandard care has caused injury, we can’t provide medical treatment, or give you a medical diagnosis. 

Sometimes people come to us shortly after having been mistreated in an Emergency Room or other medical setting, asking if they have legal redress, but not actually sure why they’re still having pain, or what’s actually wrong with them.  In that situation, you have to put first things first: prioritizing your health over legal concerns.  If you’re still having pain, or unusual symptoms, and feel that the Emergency Room got your diagnosis wrong, you owe it to yourself and your family to get a further, qualified medical advice as soon as possible.  After you know your condition has stabilized, and you’ve attended to your own health, then come to us with questions.  We’d be happy to then “solve the puzzle” of what went wrong –but only after we’re sure you’re not harming your own health by delay in getting immediate medical care.

Also, just on the level of legal analysis, we can’t “connect the dots” as to what happened in a care setting, and an injury, if your present condition isn’t clarified. So even if not urgent, we will often encourage prospective clients to get further medical evaluation if they are unsure of their present status, prior to evaluating issues of potential malpractice.  This way we can best evaluate not only whether there was fault in care, but evaluate the critical issue of whether or to what extent substandard care was the cause of significant injury. 

3. Ask Yourself: “Does This Seem Right to Me?”

Not everyone who believes they were injured by malpractice actually has legitimate grounds to sue a medical provider.  However, it is our experience that pretty much everyone who did have legitimate grounds for legal action, had a strong feeling that things “weren’t right” in delivery of care.  So if your intution is that something really “wasn’t right” in your care, and you believe it was due to malpractice, then you may benefit from a consultation with experience malpractice counsel, to discuss whether your intuition should be further investigated. 

4. Contact Experienced Medical Malpractice Counsel

Consulting an attorney with expertise in medical malpractice cases generally, and Emergency Room malpractice in particular, will give you the best opportunity to have a matter properly evaluated: to determine if it should be further investigated, records ordered and evaluated by medical experts.  And, if there are appropriate grounds for legal action, attorneys with experience in the nuances of Emergency Room care will give you the best opportunities for a successful outcome.