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LEGAL ISSUES

■ A hospital that negligently violates an EMTALA requirement may have to

pay up to $50,000 per violation.

■ The responsible emergency physician and the on-call physician who negli-

gently violate may also have to pay up to $50,000 per violation. Civil

money penalties such as EMTALA are not covered by malpractice

insurance.

■ Violation may result in loss of Medicare/Medicaid billing privileges for the

hospital.

LIABILITY AND MALPRACTICE

Statute of Limitations is time limits in which to file a claim for malpractice.

They vary from state to state but are usually within 2 or 3 years from the date

of the injury or when they discover the negligence. These statutes carry excep-

tions for disability, legal minority or mental illness, but even these extensions

are not open-ended.

Most potential cases are rejected by at least one lawyer. Of those filed, some

are settled, some dismissed by judges, and some—estimates suggest only

~10%—go to trial. Of malpractice trials, physician defendants win more than

half. The numbers also suggest that most emergency physicians will be sued

at least once in their professional lifetimes.

The Legal Process

REQUIREDELEMENTS OF AMALPRACTICELAWSUIT

To Get to a Jury, Plaintiff Must Offer Proof That:

■ The defendant had a dutyto the plaintiff. Anyone who comes or is brought

to the ER has a physician-patient relationship with the physician who sees

him, attaching that duty via EMTALA.

■ That duty was violated—there was a breachof duty. This is the negligence

in a medical negligence case.

■ The plaintiff was injured—there were damages. What would the plaintiff’s

condition have been if the duty had been fulfilled? If the outcome would

have been the same, there are no damages.

■ There was a causal link between the breach and the damages—there was

causation. It’s not enough to say that the injury would not have occurred

without the negligence. This link has to be something more than “but

for,” but less than locked-in inevitability.

THESTANDARD OFCARE ANDEXPERTWITNESSES

In a malpractice suit, the standard against which physicians are judged is:

“How would a reasonable emergency physician have performed in the same or

similar circumstances?”

This national standard does not demand the highest skill, although physicians

have set themselves up against that threshold by advertising the highest or best

practices. And the standard depends on what is actually done, not a theoreti-

cal ideal. Internal guidelines and policiesfor quality assurance and peer

review are often protected by statute, but any information accessible to plain-

tiffs may potentially be used in litigation. Admission of expert testimony

remains at the discretion of the judge. At least one state requires emergency

Negligence forms the basis of

most malpractice cases.

The four main elements of a

lawsuit:

Duty

Breach of duty

Damages

Causation