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Protect Against Malpractice In the ER

Can You Protect Against Malpractice In the ER?

Steven E. North, Esq. and Laurence M. Deutsch, Esq.


Lives are saved in hospital emergency rooms. They can also, sometimes, be threatened when critical diagnoses are not made in a timely fashion, the right consultants are not called in, and for other reasons as well.

In most instances, patients have little ability to change a course of action in the ER. There are, however steps a patient can take that might mitigate against a catastrophic event according to a recent article by New York Time health writer Jane Brody. Given that medical error is the third leading cause of death (WebMed.com), right behind cancer and heart disease, it is vital that patients do what they can to make ER visits safer and more productive.

Tip One: Brody suggests we all carry in our wallets a card with a list of the medications we take, including the dosage. If this important information is at hand, it will assist the healthcare provider who otherwise has to deal with a relatively blank history, which takes valuable time to gather. It is also wise to include potential allergies, your blood type, and any chronic medical conditions you suffer.

This is less of an issue if you’ve been to the same hospital before, because your electronic medical records will be stored and should come up automatically. Nevertheless, emergencies do not always happen locally, so having your medical information with you is always smart. It may also help you avoid unnecessary tests or, in some cases, assure that you are given tests that otherwise might not be performed but for your unusual circumstance.

Tip Two: Bring a friend or family member. Few people like being alone in an emergency room, but having someone there is about more than company. A friend or family member can help guide you through the process and serve as your advocate. Sometimes, Brody suggests, it is necessary to be proactive. If it appears that you are in extremis – very, very ill or getting worse as you wait for care in the emergency room – it is important that you or your companion speak up and make it known that there is an exacerbation of symptoms.

Tip Three: Ask questions if you are being discharged and think it is too soon. In our practice, we often see the issue of premature discharge from the ER. This can result in death or serious injury, e.g., if a patient is suffering from an unrecognized heart attack, a serious infection or intestinal blockage. Failure to admit a patient or keep him or her for observation or additional testing has resulted in many substantial medical malpractice verdicts.

While speaking up can be life saving, exaggerating the condition that brought you to the ER in the hope of getting speedier attention must be avoided. First, it’s just wrong to try to get to the head of the line ahead of people who may be more acutely ill just because you feel inconvenienced. Care in the emergency room is regulated by the rules of triage, according to which the sickest patients are supposed to be seen first. So, if you are not truly in an emergency situation but are going to an emergency room because you have no other source of care, or “just to be sure,” you can sometimes, legitimately, be expected to wait. And, if you try to exaggerate a symptom just to be seen sooner, this can actually harm you medically because it can lead the diagnostician in the wrong direction.

On the other hand, a credible person who knows his or her own body and can clearly identify real and concerning symptoms can be his or her own best ally by being as proactive as possible, even in the ER setting.

Source: The New York Times, “Navigating the Emergency Room,” May 16, 2017, page D5