Posted on July 2, 2012 by Fast Lawsuit Team
The “ER” or Emergency Room is a place fraught with stress and risks. There is definitely a level of urgency and the need to make quick decisions for doctors responding to emergency cases. Doctors and nurses may be working graveyard shifts and will need to fight off fatigue and stress. There may be cases needing attention all at once. There is a lack of time to have diagnostic testing to help enable the doctor to make a more informed decision.
That is why those who practice emergency medicine face a high risk of being sued for medical malpractice. Of the medical practitioners being sued for malpractice, emergency doctors rank third, next only to surgeons and obstetricians. Statistics also state that emergency room cases make up around 20% of all medical malpractice cases.
The lawsuits are usually typical, “bread-and-butter” cases, ones that the ER doctor has failed to anticipate. This includes the doctor’s failure to diagnose and act upon:
- A ruptured organ such as the appendix, liver or spleen
- A choking case
- a foreign body in soft tissue wounds
- a case of meningitis
- a stroke
- a fracture or dislocated limb
- an ectopic pregnancy
- an appendicitis case that the doctor did not immediately act upon, an undiagnosed meningitis or a fracture left untreated.
Informed consent. The patient has the right to give informed consent for procedures that may put him at risk. The doctor should present the situation, the suggested treatment, provide the pros and cons, as well as alternatives. However, when a patient provides his informed consent, this general consent will not shield the doctor from being sued for specific injury. There should be consent for procedures such as removing foreign objects in the body, treating fractures, chest tubes and treatment of lacerations of the tendons. Also, in emergency situations, there is the doctrine of implied consent, where it is assumed that the patient would have consented had he been able.
High Risk Factors in the ER
There are many factors that may cause a practitioner become more vulnerable to a malpractice suit:
- Shift time. Emergency cases may come in at shifts such as midnight to 7: a.m. or 6:00 p.m. to 1 a.m. During this time, the practitioner may already be suffering from fatigue, especially if he is working back to back shifts. At this time, important laboratory and diagnostic tests such as the X-ray or CT scan may not be available.
- Change in shift. The physician working the next shift may not be as vigilant, working on the false assumption that the physician from the previous shift has already properly diagnosed the patient. It is important that the doctor who receives cases turned over by the doctor of the previous shift also make his diagnosis of the patient for him to lessen the risk of being sued for malpractice.
- Patients who are unable to give informed consent. Because of the nature of emergency cases, doctors are not often able to get informed consent. Under the law (specifically the doctrine of implied consent), a doctor may treat a patient without his consent during an emergency. This covers minors (where two doctors must put on record that there is imminent danger to life or limb), incompetent adults (those who have mental or physical disabilities that render them unable to give informed consent) and unconscious patients. There is the assumption that had a reasonable patient been conscious or able to give his consent he would have, given the circumstances. The emergency must be that which threatens life or limb.
- Potential for miscommunications. Aside from an unconscious patient, ER doctors may also need to deal with patients who don’t speak the language and do not have a translator present. It is difficult for a doctor to give the proper diagnosis just by working on the physical “clues”, without the benefit of interviewing the patient.
- Minor patients. Unless the minor patient has a real medical emergency, there should be authorization from the parent or guardian unless the minor is: a) an emancipated minor; b) in imminent danger of losing his life, limb or a bodily function; c) seeking to be treated for pregnancy or sexually-transmitted disease.
Protection for First Responders
There is the need to balance protecting the patients with common sense. If those in the ER and the emergency services industry are paralyzed by the fear of lawsuits, then these professionals may refuse to provide the necessary care. There are state laws that shield doctors and medical practitioners who are first responders. This includes emergency medical personnel and ambulance crews.
But this does not excuse acts of incompetence or negligence, even for first responders. If it can be proven that a practitioner was extremely and obviously careless and may have even been intent on causing harm, he will still be liable for personal injury he has caused. His employer (i.e. the hospital) may also be held liable.
The burden of proof
Medical malpractice lawsuits are complicated because the complainant has the responsibility to prove that there is negligence on the part of the doctor being sued. This means that the complainant has to prove that under the same circumstances, any competent doctor would not have made the same mistakes. This may require the services of an expert witness, as well as a lengthy lawsuit.
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