When it comes to injuries caused by medical malpractice during emergency medical care, there are special rules that apply. "First responders" are protected by state laws from most lawsuits. And although there are no such protections for doctors and nurses in the emergency room, the very nature of emergencies lowers the professional expectation to avoid medical mistakes.
Here is a look at the circumstances in which first responders, hospitals, ER doctors and medical staff and off-duty doctors are liable for medical malpractice during an emergency.
Who is Liable for Medical Emergency Malpractice?
If medical personnel in an emergency medical situation injure a patient, whether the patient has redress is determined by who acted recklessly or negligently. It is either the first responders to the emergency or the doctors, nurses, and other medical personnel in the emergency room.
First Responders are Strongly Protected
There are one or more statutes in most states that protect the first responders to medical emergencies from lawsuits. This includes firefighters, ambulance crew, and emergency medical technicians. Lawmakers have added these protections so that emergency services can be preserved. Without these protections, these services would be subject to frequent lawsuits.
However, there is no completely protection from malpractice for first responders. Although the law varies from state to state, in essence, if a first responder does something blatantly negligent, or intentional, or totally reckless, they could be liable for malpractice. In such a case, the first responder's employer ultimately has the responsibility for medical malpractice, both legally and financially.
Normal Malpractice Rules Apply to ER Doctors and Nurses
Emergency room personnel do not have the same protections provided to first responders. Standard medical malpractice rules apply to doctors, nurses, and other medical personnel working in the emergency room.
As in other situations of medical malpractice, the patient needs to prove that the same mistakes would not have been made by a competent doctor under the same circumstances. This is called negligence. The phrase "under the same circumstances" is key here. Because the emergency room is not given the same consideration available in other medical contexts, the mistake or error made by the medical professional must often be fairly severe to rise to the level of negligence.
As with most malpractice cases, experts will be hired by both parties to testify about the actions a competent doctor would have taken in the same situation.
Hospitals are Sued as Employers
When medical malpractice takes place in the emergency room, the hospital is often made liable for the doctor, nurse or other medical professional's negligence. Although hospitals are almost always liable for mistakes made by the medical staff, it is normally not the same with doctors. Many are independent contractors and in a non-emergency situation, the hospital is not responsible for the doctor's negligence, if the doctor is not employed in the hospital and the patient knew that fact.
However, this changes in the emergency room because:
(1) The patient is going to the ER, not particularly the doctor
(2) There is no opportunity for the hospital to inform the patient that the attending doctor is an independent contractor.
As a result, hospitals are often considered responsible for an ER doctor's medical malpractice. Also, in a few states, a hospital can be sued for emergency room malpractice regardless of what the patient was told or believed.
What happens if a Patient is Refused Treatment in an Emergency Room?
Most hospitals receive Medicare funding, and any hospital that does is subject to the rules of a federal law called the Emergency Medical Treatment and Active Labor Act (EMTALA). Under EMTALA, no one can be turned away from the emergency room, regardless of the person's ability to pay. Instead, the emergency room is required to:
· Provide a medical screening of the injured individual
· Stabilize the person to the best possible extent
If these rules are violated, it can result in financial liability that is similar to malpractice damages, despite the fact that:
· The injured person was transferred to another emergency room instead of being refused treatment
· The patient had the ability to pay for the medical services
If you are or a loved one is injured due to the negligence of medical emergency professionals in New York, you should seek the expert counsel of a fantastic New York law firm like Rosenberg, Minc, Falkoff & Wolff of RMFW Law at 212-344-1000.
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