Most medical malpractice lawyers will tell you that claims involving emergency care are among the most difficult they encounter. How tough are they to win? A review of several thousand emergency care malpractice claims showed that just over one out of every four ended in a payment to the injured claimant. Stated a bit differently, nearly 75% of emergency care malpractice claimants walked away empty-handed.
Why are emergency care malpractice cases so difficult? The reasons are complex and often difficult to pin down. In part, though, it's because there are some special rules that can apply to these claims. We'll walk you through the rules that apply to emergency medicine malpractice cases, explain some of the laws that protect first responders, and discuss why it's hard to win an emergency care malpractice case.
(Learn more about the elements of a medical malpractice claim.)
Suppose you're involved in an auto accident. An off-duty doctor happens on the scene, takes your vital signs, and asks if you're in pain. You say that your left wrist hurts. Paramedics arrive and take over your care. After splinting your wrist they transport you to the nearest hospital emergency room.
The emergency room doctor orders an X-ray which doesn't seem to show any broken bones. The doctor diagnoses a wrist sprain. You're discharged home with instructions to ice and elevate your wrist, avoid activity for a few days, take ibuprofen for pain, and follow up with your family doctor if your pain continues.
A week later, you see your family doctor for continued wrist pain. The doctor orders another X-ray. This one shows a minor, hairline fracture of your wrist. The doctor puts your wrist in a cast, prescribes a mild anti-inflammatory medicine, and tells you to limit your work duties for a month.
You're upset that the broken wrist wasn't diagnosed sooner and you're thinking about malpractice claims against those involved in your emergency care. Do you have a case? Probably not. Let's find out why.
Generally speaking, passersby aren't legally obligated to provide assistance in an emergency. But if they do, the Good Samaritan Rule (GSR) shields them from legal liability as long as they don't act in a way that's grossly negligent or reckless.
Does the GSR apply to doctors and other healthcare professionals? It can, as long as:
Will the GSR apply in our case example? Yes, as long as the doctor who stopped to help wasn't already your physician. If we assume that to be the case, then we apply the GSR standard (no gross negligence or recklessness) instead of the medical malpractice standard. You almost certainly have no malpractice claim against the passerby doctor.
In most states, first responders have statutory protection from liability for emergency medical services they provide. First responders usually include ambulance crews, police officers, firefighters, and emergency medical technicians, though some states protect others as well. First responders often are protected from liability for ordinary negligence, but not for actions that are grossly negligent, reckless, or intentional.
California law provides an example. Cal. Health & Safety Code § 1799.106 (2023) provides that first responders "shall only be liable in civil damages for acts or omissions performed in a grossly negligent manner or acts or omissions not performed in good faith." If the first responder isn't liable, neither is the agency that employs the first responder.
Let's return to our example. The facts tell us that first responders splinted your wrist at the scene, a reasonable and appropriate step given your complaint of wrist pain. There are no facts suggesting they did anything that could be considered grossly negligent or reckless. Any claim against the first responders likely fails.
To win an emergency care malpractice claim, you must prove that the doctor was negligent. Proving negligence means showing that the doctor failed to act as a reasonably careful emergency room doctor in the area would have acted under similar circumstances. In addition, you have to prove that the doctor's negligence caused you to suffer some injury.
One key here is the phrase "under similar circumstances." An emergency room can be a hectic place. Some patients have routine, uncomplicated conditions like a sprain, a minor cut, or a cold. Other times, patients present with severe, even life-threatening health issues—a heart attack, a stroke, or catastrophic injuries suffered in a car crash.
Because the emergency room frequently doesn't allow for the calm deliberation available in other medical settings, even reasonably careful doctors—that is, doctors who practice according to the standard of care—sometimes make mistakes. The standard of care in emergency medicine recognizes that at times, quick decisions have to be made without the benefit of as much information as might be gathered in, say, a family practice clinic.
Back, once again, to our example. Based on the available facts, it's likely that the emergency room doctor acted reasonably under the circumstances. Any competent emergency medicine doctor treating a car wreck driver with wrist pain would have ordered an X-ray and, on learning there was no fracture, discharged you with similar instructions.
Let's change the facts of our example just a bit. Suppose that a radiologist employed by the hospital misread your X-ray, which does show faint evidence of a small wrist fracture. Does that mean the radiologist was negligent? Maybe.
If the radiologist was negligent, what about a lawsuit against the hospital? A hospital can be legally responsible for the negligence of its employees. Doctors usually aren't employed by the hospital (our emergency room doctor probably isn't) but the facts tell us that the radiologist was a hospital employee. Under a legal theory called "respondeat superior" (meaning "let the superior answer"), the hospital could be legally responsible for any injury you suffered because of the radiologist's fault.
Researchers conducted a study of 6,779 malpractice cases that originated in either an emergency department or an urgent care center. All claims were resolved between 2001 and 2015. Here's how the cases ended:
In the 515 cases that went to trial, the plaintiff (the injured party who filed the lawsuit) usually didn't fare well. The defendant (the healthcare party being sued) won 477 (92.6%) of those cases. Plaintiffs won just 38 (7.4%) verdicts. The message is quite clear: If your emergency medicine malpractice claim doesn't settle or get resolved in ADR, your chance of winning at trial can be slim.
Of the 6,779 total claims studied, 1,799 (26.5%) resulted in a payment to the injured claimant. In the 1,549 claims that settled, the average settlement payment was $297,709. For claims resolved via ADR, the average payment was $279,380. In the 38 cases that ended in a plaintiff's verdict, the average payment was $816,909.
Emergency care malpractice cases are among the most difficult medical malpractice claims to win. Statutory protections often shield providers from liability. Lawsuits that go to trial usually end in a verdict for the defendant. If you think you've got an emergency care malpractice claim, you should discuss it with an experienced medical malpractice lawyer.
If you're ready to look into a possible claim, here's how to find an attorney who's right for you and your case.