Medical Malpractice During Emergencies

Emergency medical situations may have special rules that don'tapply to other medical malpractice scenarios.

Special rules apply to injuries caused by medical malpractice during emergency medical care. State laws protect "first responders" from most lawsuits. And even though no such protections apply to doctors and nurses in the emergency room, emergencies by their very nature lower the professional expectation to avoid mistakes. Here's a primer on when first responders, ER doctors and medical staff, hospitals, and off-duty doctors are liable for medical malpractice during an emergency. (To learn more about the elements of a medical malpractice claim, read Nolo's article Medical Malpractice Basics.)

Who Is Liable for Medical Emergency Malpractice?

If a patient is injured by medical personnel in an emergency medical situation, whether the patient has redress depends on who acted recklessly or negligently the medical personnel who first respond to the emergency or the doctors, nurses, and other medical personnel in the emergency room.

First Responders Have Strong Protection

Most states have one or more statutes (written laws) that protect the "first responders" to medical emergencies (those who are the first to respond to an emergency and give medical care to the patient) from lawsuits. This includes ambulance crews, firefighters, and emergency medical technicians. Lawmakers have added these protections in order to preserve emergency services, which would otherwise be subject to frequent lawsuits.

However, first responders are not completely protected from malpractice. Although the law varies from state to state, in essence if a first responder does something totally reckless, blatantly negligent (without using reasonable care), or intentional, he or she could be liable for malpractice. In such a case, the first responder's employer will ultimately be responsible (legally and financially) for medical malpractice.

Normal Malpractice Rules Apply to ER Doctors and Nurses

The protections provided to first responders do not extend to emergency room personnel. Standard medical malpractice rules apply to doctors, nurses, and other medical personnel working in the emergency room.

As in other medical malpractice situations, the patient must prove that a competent doctor under the same circumstances would not have made the mistake  this is called negligence. (To learn what is necessary to prove a medical malpractice claim, read Nolo's article  Medical Malpractice Basics.) The key here is the phrase "under the same circumstances." Because the emergency room does not allow for the calm consideration available in other medical contexts, the mistake must often be fairly severe to rise to the level of negligence.

As with most malpractice cases, both sides will hire experts to testify about what a competent doctor would have done in the same situation. (To learn more about expert witnesses in these types of cases, read Nolo's article  Medical Malpractice: Using Expert Witnesses.)

Hospitals Are Often Sued as Employers

The hospital is often on the hook for a doctor's or other medical staff person's medical malpractice in the emergency room. Although hospitals are almost always liable for medical staff mistakes, that is normally not true with doctors. In a non-emergency situation, if the doctor is not an employee of the hospital (many are independent contractors) and the patient knew that fact, the hospital is not responsible for the doctor's negligence.

In the emergency room, however, this changes because (1) the patient is going to the ER, not the doctor in particular, and (2) the hospital doesn't have an opportunity to inform the patient that the attending doctor is an independent contractor. As a result, hospitals are often on the hook for an ER doctor's medical malpractice. (To learn about hospital liability for medical malpractice, read Nolo's article Medical Malpractice: When Can Patients Sue a Hospital for Negligence?)

There are also a few states that allow a hospital to be sued for emergency room malpractice regardless of what the patient believed or was told.

Does the Good Samaritan Rule Apply to Doctors?

People generally are not legally obliged to help someone in trouble. However, if they do, they must help in a way that isn't reckless and does not needlessly endanger the person they are trying to rescue. This rule is called the Good Samaritan rule and is established by law in all 50 states.

The Good Samaritan rule does not apply to doctors or other medical personnel, unless they happen to be near the accident or emergency when they are off-duty. In other words, an off-duty doctor that "comes to the rescue" will not be judged by malpractice rules, but by the Good Samaritan rule. If, however, a patient already has a doctor-patient relationship with the rescuing doctor, the fact that the doctor is off-duty at the time generally does not switch the legal standard from medical malpractice to the Good Samaritan rule.

What if the Emergency Room Refuses to Treat a Patient?

Any hospital that receives Medicare funding (which most hospitals do) is subject to the rules of a federal law called the Emergency Medical Treatment and Active Labor Act (EMTALA). Under EMTALA, the emergency room cannot turn anyone away, regardless of the person's ability to pay. Instead, the emergency room must:

• provide a medical screening of the injured person, and
• stabilize the person to the extent possible.

A violation of these rules can lead to financial liability similar to malpractice damages, even if:

• the emergency room transferred the injured person to another ER instead of just refusing treatment, or
• the patient could have paid for the medical services.

Only the hospital is liable under EMTALA, never the emergency room doctor.

Getting Help

Medical malpractice law is highly regulated by a complex body of rules, which vary considerably from state to state, so it is often essential to get advice or representation from a lawyer.

For help on choosing a good medical malpractice attorney, read Nolo's article Finding a Personal Injury Lawyer. Or, go to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click "Types of Cases" and "Work History" to learn about a particular lawyer's experience, if any, with medical malpractice claims).