Chicago Emergency Room Negligence Attorneys
A visit to the hospital emergency room is seldom a choice. If a person is just feeling ill, or has the flu or a cold, he or she will typically schedule a doctor's appointment or visit an Urgent Care Center. Urgent Care Centers are good places to go for people that don't have a regular doctor or can't get an appointment to see their doctor, but have less than life threatening conditions such as allergies, coughs, UTIs, colds, broken bones, or rashes. Although some people go to emergency rooms for less serious conditions such as these, the ER is, as the name suggests, really intended just for emergencies.
The Nature of Emergency Rooms
When a person schedules an office visit with their personal doctor, the nurse will check the office schedule and assign an appointment time. You may or may not be able to get in on the same day that you request. Sure, most doctors overbook their appointments and set multiple patients for the same time, so you may have to wait a while, but at least with a doctor's office visit you know that you have a fixed appointment time.
Emergency rooms are completely different. There are no appointments and no set times. You might show up to an emergency room one day and get seen by a doctor immediately, while on another day you might spend many, many hours just sitting in the waiting room. Some days and some ER locations are almost always more crowded than others. On the 4th of July, the ERs are packed with patients who have injured themselves, severed fingers and suffered hearing loss from fireworks and explosives. On New Year's Eve, Labor Day and other national holidays, emergency rooms see many patients with alcohol poisoning and drug overdoses. If the ER is in a college town, the same may happen on game day. If the emergency room is in a low-income neighborhood of a major city that is battling violence problems like Chicago, certain ERs may have a constant stream of shooting injuries, stabbing injuries and drug overdoses. Some ERs may have enhanced trauma facilities while others may not.
When you make an appointment at doctor's office, you'll also likely know which doctor you will be seeing, and if that doctor is unavailable, you'll likely be acquainted with his or her associate. But in an emergency room, you not only get no choice of doctors, but the doctor you get will be anyone's guess. It may be an experienced physician or it may be a newly minted doctor, wet behind the ears and fresh off the train from medical school. The doctor may have just started his or her day after a good night of rest, or the doctor may have been working many hours straight all night long and be barely awake. These are the realities of patient care in an emergency room. The stakes are so very high and yet, you never know what level of care you may receive.
Causes of ER Medical Malpractice
Because the basic nature, structure and staffing of emergency rooms is so different than that of doctors' offices and Urgent Care Facilities, the potential for medical malpractice is different (and greater) as well. Some of the most common reasons that ER malpractice happens include:
- Failure to maintain proper staffing levels – Hospital emergency rooms couldn't possibly be any more different than a McDonalds. Yet, hospitals and their emergency rooms are in the business of making money just the same as any other business. As such, they try to maintain as low an overhead as possible and as low employee costs as possible. That means trying to provide enough staff to handle the patients, but not more than necessary. Sometimes this works out fine but sometimes, when the number of incoming ER patients exceeds anticipated volume, it puts stress on the ER, and leads to overworked doctors who commit medical malpractice mistakes. Other times, inadequate staffing levels are the result of a shortage of qualified nurses for instance.
- Failure to properly screen nurses, support staff and doctors – Just as with any other business that deals with the public, hospital emergency rooms must properly examine the credentials of every medical employee and independent contractor that provides medical services in their ER. When hospital administrators fail to exercise proper care in hiring, employees or independent contractors with histories of previous medical errors and lawsuits may make further mistakes, subjecting the hospital emergency room to further liability.
- Failure to properly train doctors and staff – Although medical staff might be assumed to have the proper medical training based upon their certification or medical degrees, a certain amount of training is still necessary in order to effectively work in any ER. Different emergency rooms have different protocols, policies and procedures and a failure to properly indoctrinate the medical staff may lead to negligent errors which lead to injury or death.
- Unsanitary ER conditions – More than any other type of medical facility, an emergency room lends itself to high volume. And with high volume comes extra medical waste, bodily fluids, blood and used unsanitary surgical utensils. So it often falls upon the shoulders of already understaffed and overworked orderlies and technicians to keep the ER clean in a never-ending battle against germs and bacteria. When those in charge of keeping the emergency room clean fail in their duties, infections will occur, and infectious diseases or viruses will be transmitted. As time is of the essence in an emergency situation, nurses and doctors must move quickly and sometimes they may also fail to properly wash their hands or sterilize devices or medical tools.
- A failure to track patients properly / improper triage – Triage is the process of determining which patients should be seen and treated first, based up the severity of their medical condition. The concept was originated hundreds of years ago in relation to the medical treatment of those injured in war, when there more injured people than there were doctors to treat them. But the process is of equal importance in the context of today's emergency room. When resources and doctors are limited, which patients should be seen first? Those with the most severe medical conditions of course. Today, many computer software programs exist which are specifically intended to aid the medical staff in determining the order of treatment. But when emergency rooms fail to properly utilize the software or lose track of seriously injured patients still waiting to be seen, mistakes, injuries or death may result from such emergency room medical malpractice.
- Inadequate procedures for administration of medication – According to one study, those emergency rooms that instituted a barcode software system to better coordinate the administration of medication saw an 80% reduction in mediation errors. Especially with the fast pace of ERs, medical errors are more likely to happen. And when they happen with medication, the effects can be serious injury or death. Whether the mistake involves giving the wrong medication, too much medication, failing to give medication, or untimely dosage of mediation, it all adds up to medical malpractice.
- Inadequate procedures for keeping records – Of the greatest importance to any business, let alone an emergency room where even small mistakes may mean the difference between life and death, the proper keeping of records is vital. If a patient's records are not kept properly and the medical staff is not made aware of a patient's allergic reactions, drug interactions, correct medical history, or current medical status, disaster may be just around the corner. In other circumstances, a failure to keep good records may also result in wrong site surgery or wrong patient surgery (when patients with similar names are confused by the medical staff).
- Inadequate medical facilities – In the best of worlds, all emergency rooms would be adequately staffed with properly trained staff and have all of the diagnostic testing equipment and state of the art facilities necessary to perform at their very best. But unfortunately, some ER facilities are more adequate than others. For instance, in poorer and more violent neighborhoods in Chicago, certain ERs are actually better suited for treatment of traumatic gunshot wounds, although they may be less suited for other medical emergencies. On the other hand, some Chicago suburban ERs may be just the opposite.
- Overwork and lack of rest – Doctors, nurses and other medical staff are human just like everyone else. As such, they cannot operate effectively when overworked or when they are tired. Unfortunately, it is a fact that emergency room staff often are on the job for shifts of 12 hours or more. Misdiagnosis of medical conditions, failing to provide the correct treatment and incorrect recognition of patient symptoms are just some of the many negligent errors that may occur when doctors and staff are sleepy or overworked.
- Violation of the Emergency Medical Treatment and Active Labor Act – This act (known as the EMTALA) has been a federal law since 1986 and was enacted into law to guarantee everyone access to emergency medical services whether they can pay or not. Under this law, those hospitals that take federal funds under Medicare are required to offer a medical screening examination (MSE) when an incoming patient requests it. The request must be for an emergency medical condition (EMC), which category includes active labor/delivery in pregnancy. They are also required to stabilize patients with EMCs. But sometimes, in the pursuit of higher profits, an emergency room will turn away a patient with an EMC, requiring them to travel to another county-run hospital (such as John H. Stroger Jr. Hospital of Cook County in Chicago). In addition to violating federal guidelines, this is unethical, illegal and may subject the emergency room to a medical malpractice lawsuit, especially if the patient's condition worsens as a result. This is often referred to as "Patient Dumping".
- Discrimination – Despite the federal law known as Emergency Medical Treatment and Active Labor Act (EMTALA), which mandates that any patient with an Emergency Medical Condition is entitled to treatment, an ER sometimes violates the law and turns a patient away because they believe that he or she is unable to pay for services. Another immoral and unethical practice involves turning away minorities for similar discriminatory reasons. Such a practice may also lend itself to a successful medical malpractice lawsuit.
Types of ER Medical Malpractice
The medical problems, issues, diseases, conditions and illnesses that pass through the entrance doors of an emergency room are often no different than those that are handled in the main portion of the hospital. From minor injuries to the most serious diseases like cancer, at one time or another ER medical personnel will have been confronted with it. But due to the fast pace, high volume and high stakes of the emergency room, medical mistakes are often more likely to happen than otherwise. Emergency room mistakes may occur at any point during the process including:
During Admittance to ER
- Delayed diagnosis / Long wait times - According to recently collected data, wait times in the nation's emergency rooms have continued to climb year after year. The longer the wait time, the more likely the danger that a patient will go undiagnosed and suffer serious long term or fatal injury. In the case of an imminent heart attack, appendicitis, stroke, internal bleeding, blood clots, pulmonary embolism or brain aneurism, every minute is extremely important. Although average wait times in Illinois hospital emergency rooms are close to the national average generally, the recent data collected by ProPublica reports some Chicago area hospitals that are far above the national average including:
- John H. Stroger Hospital with a wait time of 106 minutes vs. national average of 24 minutes
- Loyola Gottlieb Memorial Hospital with a wait time of 101 minutes vs. national average of 24 minutes
- Provident Hospital of Chicago with a wait time of 93 minutes vs. national average of 24 minutes
- Mt Sinai Hospital Medical Center with a time of 245 minutes vs. national average of 135 minutes before being sent home
- The University of Chicago Medical Center with a time of 254 minutes vs. national average of 135 minutes before being sent home
- Advocate Trinity Hospital with a time of 109 minutes vs. national average of 54 minutes before receiving pain meds for a broken bone
- John H. Stroger Hospital with a time of 160 minutes vs. national average of 54 minutes before receiving pain meds for a broken bone
- Advocate Christ Hospital & Medical Center with a wait time of 249 minutes vs. national average of 96 minutes before being taken to a hospital room after being admitted
- Holy Cross Hospital with a wait time of 217 minutes vs. national average of 96 minutes before being taken to a hospital room after being admitted
- Other Chicago area hospitals with enhanced waiting room times include the University of Illinois, Swedish Covenant, St. Anthony, Rush University Medical, among others.
- Patient Dumping – When a patient is turned away, either because he or she is uninsured, appears unable to pay for treatment, or for discriminatory reasons based upon race, ethnicity or sexual orientation, the hospital may become the subject of a medical malpractice lawsuit, especially if the delay in treatment caused additional injury.
- Lack of informed consent – Although some exceptions exist regarding the necessity of obtaining informed consent (complete disclosure of risks and benefits of treatment), in most medical situations full informed consent is still necessary. Failure to have such a discussion may constitute medical malpractice.
- Staff interruptions – Once the wait time is over and the patient is seen by a doctor, this is a critical time for the doctor to collect all of the relevant information necessary for an accurate diagnosis. But according to a study by University of Indiana researchers, during an average two hour period, an emergency room doctor may treat about a dozen patients, yet he or she may interact or be interrupted dozens of people during this time. This important period meant to learn about the patient's symptoms may be seriously impacted by such interruptions.
- Intravenous IV errors – If intravenous fluids are administered during the examination, errors by the nurse technician may result in a serious permanent injury know as an infiltration injury when the catheter tip is inserted outside of the vein. Depending on the medication being administered, certain vesicants can badly burn body tissue. Some such medications include morphine. Digoxin, Nitroglycerine, Phenergan, Potassium Chloride, Calcium Chloride, as well as many chemotherapy drugs and antibiotics.
- Failure to communicate – Whether as a result of interruptions by other medical staff, overwork, failure to devote enough listening time, or just poor communication skills, the ER doctor may fail to properly understand the patient's symptoms and complaints, leading to a negligent diagnosis.
- Failure to order proper testing – Often based upon communication errors as well, the doctor may fail to order the proper tests necessary to render a correct diagnosis. Sometimes, the failure to order proper testing is intentional due to the doctor's belief that the patient is uninsured or unable to pay for the testing.
- Failure to follow ER protocols – Every hospital ER has systems, protocols, procedures and policies in place intended to protect patients, and yet one study found that as many as 90% of ERs fail to follow them, subjecting patients to possible injury. Such failures may constitute medical malpractice.
- Misreading diagnostic tests – Regardless of which diagnostic tests (such as CT scan, X-ray or MRI) have been ordered, it is vital that the doctor or diagnostic technician correctly read the results. If the tests are incorrectly read, cancer, traumatic brain injury or other serious health problems may go undiagnosed.
- Laboratory errors – In order to render an accurate diagnosis, tests must be properly performed. Sometimes, a test which has been ordered is not done correctly, leading to a false positive or false negative. In such a case, the doctor's may fail to diagnose a serious condition or misdiagnose the illness.
- Misdiagnosis – When a doctor diagnoses one illness or disease as another, it will inevitably lead to an incorrect course of treatment. Such incorrect treatment may allow the condition to progress unimpeded. In the case of fast growing cancers such as brain cancer, liver cancer, pancreatic cancer, esophageal cancer or skin cancer, such a misdiagnosis may mean the difference between life and death. Even slower growing cancers such as breast cancer, colon cancer and prostate cancer must be diagnosed early to increase chances for successful treatment and survival rates. Failure to do so will likely constitute emergency room medical malpractice.
- Failure to diagnose – An equally deadly error when compared to a misdiagnosis, the failure to diagnose will not lead to an incorrect course of treatment, but will lead to no treatment at all. Even if the disease, cancer, or illness is later discovered (delayed diagnosis), the chances for effective treatment may be significantly reduced.
- Contamination / Infection /Transmission – In part due to the challenges in keeping a high volume emergency room clean, a patient may come into contact with and contract infectious diseases while in the ER from contaminated, unsanitary conditions or from sick patients and medical staff members.
- Surgical errors – Because emergency rooms deal with many life threatening situations in which immediate surgical intervention is required, the potential for surgical medical malpractice is always present in the ER. Due to understaffing, high volume and overworked staff, wrong site surgery and wrong patient surgery are a constant danger as are other surgical mistakes that may happen under the extreme pressures of the ER.
- Improper medication – The administration of the proper medications, administered properly and in a timely manner, is of the utmost importance. When medicines are incorrectly or improperly given, medical malpractice has occurred. In some medical situations, such as an impending heart attack, emergency room staff may administer any of a variety of drugs, including ACE inhibitors, thrombolytics, antiplatelet agents, nitroglycerin, beta blockers or blood thinning agents. If a delay occurs, or the wrong meds are given, death or stroke may quickly occur.
- Hand-off errors – Typically, an ER patient is seen by a number of different medical staff members and doctors during their stay. When the patient is "handed-off" from one member of the medical staff to another, it is vital that correct and full medical information is handed-off as well. If important information is left behind, the next staff member may not have all the information necessary to treat the patient correctly.
Filing a Successful Emergency Room Malpractice Case
As with the filing of any medical malpractice lawsuit in Chicago or elsewhere in the state, certain requirements must be met and certain elements must be proven, which include:
- The duty of care – Any person who walks into an emergency room seeking medical attention is owed a duty of care by the ER doctor and medical staff to treat the patient to the best of their abilities and to not harm the patient. This is usually not difficult to prove.
- Standard of care – It must be shown exactly what the proper "standard of care" for treatment of this particular injury, illness or disease should have been. A medical expert is almost always hired by the medical malpractice attorney to review the patient's medical records, and sign a written affidavit attesting to what a similarly situated doctor should have done under similar circumstances.
- Breach of duty – In order to win an ER medical malpractice lawsuit, it must be shown that the medical provider breached (failed to provide) this proper standard of care. This is also usually proven with testimony from an expert medical witness.
- Injury or death – It must be proven that the breach of this medical duty was either the direct or the proximate cause of an injury to or the death of the patient. It is not sufficient to show that the patient died after treatment or that the patient's medical condition worsened. It must also be shown that it happened directly because of the emergency room medical treatment.
- Damages – If it can be shown that the doctor owed a duty to the patient and that he or she breached that duty that resulted in injury or death, then the attorney must lastly prove damages. Damages are a money value assigned to the injury or death which usually requires a skillful attorney to demonstrate, as it is obviously hard to put a money value on a person's health. Some damages which a patient or a patient's family may sue for include:
- Burial expenses
- Current and future medical bills
- Long term disability
- Loss of companionship
- Long term care expenses
- Pain and suffering
- Loss of enjoyment of life
- Proper defendants – Depending on the nature of the negligent injury and the particular emergency room circumstances, the doctor may not be the only person subject to a lawsuit. Other potential defendants may include the hospital, anesthesiologists, nurses, pharmaceutical companies, or governmental entities. Although the hospital is often not a proper defendant in an ER malpractice case due to the fact that most ER doctors are independent contractors and not employees, there are many situations where our Chicago medical malpractice attorneys have been able to prove otherwise and successfully sue the hospital as an additional defendant.
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For over 25 years, the affiliated attorneys of Mitchell S. Sexner & Associates LLC have fought powerful medical insurance companies on behalf of our injured clients and won tremendous verdicts and settlements in the many millions of dollars. You'll find our legal team to be easily reachable, highly experienced and compassionate. Call today for free and discuss your questions with no obligation 24 hours a day. We would like to help if you will allow us the opportunity. Our phone number is (800) 996-4824