Issue: December 2012
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When Urgency Leads to Errors: Liability for Emergency Care

Introduction

Emergency Medicine Liability

According to the CDC, more than 136 million people visit emergency departments in the United States each year. Most of these visits are for urgent health problems; 45 million of them are related to injuries.

 

Emergency rooms can be overcrowded, delays can occur, complications can arise, and mistakes can be made. The number of patients sent home from emergency rooms in the United States each year who have to return within 72 hours because of medical errors has been estimated at between 600,000 to one million.

 

It is critical for attorneys to understand the potential theories of liability and defenses, and for physicians, insurers, and employers to be aware of their exposure to liability and what strategies to employ in emergency medical care situations.


The Perspectives: Improve Your Strategy

Attorneys:

What proof is needed for a malpractice claim involving emergency medical treatment? And, what is a potential strategy for the attorney to employ?

Physicians:

How can liability for medical malpractice be avoided for an injury involving emergency medical treatment? And, what is a potential strategy for the physician to employ?

Insurers:

Can a payout under a medical malpractice liability policy be avoided by proof that the health provider was not negligent or there was no coverage for a medical malpractice claim against an emergency room physician? And, what is a potential strategy for the insurer to employ?

Employers:

Can an employer such as a hospital be subject to liability for injuries caused by malpractice involving emergency medical treatment? And, what is a potential strategy for the employer to use?


Practice the Technique: Checklists

Attorneys:

Counsel must develop a list of facts and circumstances, specific to the client’s fact situation, which demonstrates proof of liability in emergency medical circumstances.

Physicians:

The other parties to the litigation will scrutinize the treating physician, medical experts, diagnosis, and treatment provided. The following should be evaluated, and strategies to defend against any perceived improper diagnosis or treatment should be considered and prepared

Insurers:

When investigating a claim of malpractice in emergency medical treatment, the insurer should carefully evaluate the actions of the health provider and hospital. The insurer should look for the following “red flags” and consider how they impact the insurance coverage and liability for payouts.

Employers:

In the case of a hospital that could be considered the employer of an emergency room physician, nurse, or other healthcare provider, the hospital should be concerned with possible respondeat superior liability for injury from errors in emergency treatment.

Expert Analysis

What Steps Can Emergency Physicians Take To Avoid Liability When Providing Care?

Charles R. Grassie, M.D., J.D.

What Guidance Should Attorneys Consider When Facing the Challenges of Emergency Medical Malpractice Litigation?

James Bartimus, J.D.

Litigation

Alternative Dispute Resolution

Arbitration or mediation may be required by contract or statute, mandated by the court or, in some circumstances, may be the appropriate method for a negotiated resolution.


Reasons to Reach Settlement

The following are reasons why the attorney, physician, insurer, or employer would want to reach settlement, and not take the action to trial.


Reasons to Go to Trial

The following are reasons why the attorney, physician, insurer, or employer would want to take the action to trial.


Jury Awards and Settlements

How much have juries awarded and what settlements have been reached recently in emergency health care cases?



Medical Examples

Emergency and Trauma Care, Records, Providers, Care Controls

This section provides detailed medical information on emergency and trauma care, providers and staffing, emergency record contents, and care controls.



Law and Medicine Resources

References

Provided below is a listing of law and medical references for further information on liability in emergency medicine situations.


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When Urgency Leads to Errors: Liability for Emergency Care

Table of Contents
Introduction

Expert Analysis
   Charles R. Grassie, M.D., J.D.
   James Bartimus, J.D.

The Perspectives: Improve Your Strategy
   Attorneys
   Physicians and Health Providers
   Insurers
   Employers and Risk Managers

Practice the Technique: Checklists
   Attorney Checklist
   Physician Checklist
   Insurer Checklist
   Employer Checklist

Alternative Dispute Resolution

Reasons to Reach Settlement

Reasons to Go to Trial

Jury Awards and Settlements

Emergency and Trauma Care, Records, Providers, Care Controls

References