Malpractice Liability for Emergency Room Errors

A hospital ER can be a chaotic place, but that doesn't excuse serious medical errors that end up harming a patient.

By , J.D. · DePaul University College of Law

Emergency rooms can be pretty chaotic, and the position of an emergency room physician is one of the most challenging in medicine. Because of these realities, medical malpractice law may allow an emergency room physician more leeway than might be afforded to other doctors who have the luxury of time to contemplate a proper course of treatment. However, any such leeway is limited, and emergency room physicians can still be held liable for any harm that comes to a patient as the result of sub-standard care.

In order to win a medical malpractice case based on errors that occur in the emergency room setting, a patient must prove three basic elements:

  • that a doctor-patient relationship existed
  • that the emergency room treatment involved negligence, and
  • that the patient was harmed by the negligence.

Doctor-Patient Relationship

This requirement is generally quite simple to establish. When a doctor examines a patient or provides treatment in an emergency room, a doctor-patient relationship is generally established. A patient need not prove that a continuing doctor-patient relationship was established beyond the initial treatment, only that the relationship was in place when the alleged malpractice occurred. Usually, records of the patient's admittance to the ER and any treatment charts are more than sufficient.


A doctor acts negligently by failing to provide the quality of care that other reasonably competent doctors would have provided under similar circumstances. In a medical malpractice lawsuit, a patient must prove two things to demonstrate negligence:

  • standard of care, and
  • breach of the standard of care.

Standard of Care in The ER

In the realm of medical malpractice, "standard of care" is a legal term that refers to the level of competence that most doctors would have conducted themselves with in similar circumstances, when treating the patient. This is where an emergency room doctor will be granted some leeway. The standard of care in an emergency room will usually not be as high as the standard of care would be in a less hectic environment.

For example, imagine a patient in an emergency room complains of headaches. If the patient were to visit a specialist, the standard of care might require that the doctor methodically test for and rule out different diagnoses, using things like CT scans and MRIs. However, the standard of care in an emergency room might be different. In that setting, it might be reasonable for a doctor to perform a few tests, give the patient some pain medication, and instruct the patient to visit a specialist if the headaches persist. If it turns out that the patient had a malignant brain tumor, medical malpractice law may have considered the specialist's failure to diagnose cancer as negligent, while the emergency room doctor's treatment choices may have been appropriate under the circumstances.

In the vast majority of cases, establishing the standard of care requires expert testimony. The patient's lawyer consults a doctor specializing in emergency medicine, and the specialist considers all evidence and presents his or her opinion on what kind of treatment would have been reasonable and competent under the circumstances.

Breach of the Standard

The next step is for the plaintiff (again, usually through the use of expert opinion) to methodically show how the emergency room treatment that was actually received fell short of the appropriate standard of care under the circumstances -- what would a reasonably competent doctor have done, contrasted with what was actually done (or not done)?

Harm Caused by the Negligence

In order to win a medical malpractice lawsuit, a patient must prove that the doctor's negligence caused foreseeable harm. This harm can take many forms, including:

  • pain and suffering
  • cost of medical bills due to additional corrective treatment
  • loss of earning capacity, and
  • loss of the ability to enjoy life.

The critical issue is whether the emergency room doctor's purported negligence actually caused harm.

For example, imagine a patient visits an emergency room, complaining of pain in his or her wrist. The doctor examines the wrist and diagnoses a strain, missing a hairline fracture in the X-ray. The patient leaves in a wrist brace and returns two days later for a routine follow up. At that point, another doctor properly diagnoses the fracture.

Technically, the first doctor was probably negligent in failing to properly diagnose the fracture. But the issue here is harm -- what sort of injury or damages did the patient sustain due to the missed diagnosis? There may not be any provable damages in this case, but this is also where an expert's input would be utilized in an attempt to show how even a two day delay could be detrimental to the patient (and therefore result in compensable damages).

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