Emergency Rooms & The Law:
Errors, Injuries & Missed Diagnoses
in Oklahoma ER's

Hospital Emergency Room Errors

If you have been to an emergency room ("ER") recently, for yourself or with a friend or loved one, you probably have some idea of the state of affairs for emergency medicine in the U.S. There are some problems; but despite the problems, the fact is that the U.S. ER system is generally an amazing system, and the vast majority of ER visits are handled quite well.

Errors do happen, however, and unfortunately, these errors in the ER are often deadly or dramatically life changing. The U.S. Center For Disease Control ("CDC") reports the following:

116.8 million ER visits per year;
222 ER visits every minute across the U.S.;
64.7% of ER visits occur after 5pm and before 8am and on weekends;
39.4 million injury-related ER visits per year;
39.4 ER visits per year, per every 100 people;
18% of ER patients are seen in the first 15 minutes (82% take longer than 15 minutes);
12.5% (1 out of every 8) ER visits result in the patient being admitted to the hospital;
39.0% of ER visits are by patients with private health insurance;
42.4% of ER visits are by patients with Medicare or Medicaid;
15.3% of ER visits are by patients without any form of health insurance;

The ER is in place to perform one of the most critical business roles and human-service functions in our society. Regulations over ER's operations are, and should be, rigorous because, by definition, these organizations are dealing with "emergencies" and we all rely on their performing exceedingly well under pressure and without delay.

The Business of Emergency Rooms

A hospital ER is a department of the hospital, and is a regulated operation by both federal and state law. Unlike many hospital departments, however, the ER is often an operation made up of many different groups, not all of which directly report to the hospital.

Hospital ER's may contract with nursing organizations to provide nursing staff, doctor organizations for doctors, independent specialists for specialty services (e.g., orthopedic, cardiovascular), and other organizations that provide specialty diagnostic equipment (e.g., MRI, CT Scanner, X-ray, Lab).

Hospital ER's are, in short, often very complicated operations with many contractual relationships between the many parties working in the ER.

Emergency Room Laws

Hospital ER's in Oklahoma are classified by "Level," with Levels ranging from 1-5, with Level 1 and Level 2 having the highest capabilities. Further, ER's are regulated by many federal laws, including EMTALA, the Emergency Medical Treatment and Active Labor Act.

The individuals working in the ER are also regulated by different organizations. For example, Physicians are licensed by the Oklahoma Board of Medical Licensure and Supervision; Nurses are licensed by the Oklahoma Board of Nursing; and the hospital itself is licensed by the Oklahoma Department of Health.

These laws, and regulations from multiple state and federal agencies, comprise a large body of law which dictates how an ER is supposed to lawfully operate. If you suspect malpractice or medical negligence has occurred in an ER, these bodies of law should be consulted to determine if a violation could have contributed to the injury.

Types of Emergency Room Errors

ER's can appear to operate with organized (or disorganized) chaos, leading to a susceptibility for certain types of errors to occur more frequently than others. Some of the reasons contributing to ER errors include: Poorly trained staff and/or physicians; Overcrowding; Understaffing; Inadequate equipment; Hospital bed shortage; Employee stress and fatigue; and Lack of financial support.

The most common type of ER errors are misdiagnosis and medication errors. Additionally, delays in treatment and misreading of test results are also frequent. Specific examples of ER errors include: Failure to diagnose ruptured spleen; Failure to diagnose meningitis; Failure to diagnose aortic aneurism or pulmonary embolism; Failure to diagnose a stroke; and Failure to diagnose a heart attack.

Hospitals, like any other organization, can make errors; but when they do the consequences have the peculiar characteristic of being potentially deadly. In fact, the U.S. Office of Inspector General ("OIG") has found that "an estimated 13.5 percent of hospitalized Medicare beneficiaries experienced adverse events during their hospital stays." (see OIG Report, ADVERSE EVENTS IN HOSPITALS: NATIONAL INCIDENCE AMONG MEDICARE BENEFICIARIES, Nov.2010, OEI-06-09-00090).

Unfortunately, these types of errors can lead to irrecoverable conditions, and even death. Furthermore, if the individual who was harmed does not take action against the hospital, then there is arguably little motivation for the hospital to scrutinize its process and fix the problem which led to the error.

What Should You Do?

A person injured in an ER should first do three things:

(1) Visit the hospital ER and get a copy of the medical records;

(2) Take the medical records and get follow up care from another physician; and

(3) Consult an attorney to determine if there is reason to consider a medical negligence/malpractice claim, or wrongful death claim.

What Should Your Attorney Do?

Handle your case personally;

Be available when you call;

Keep you updated;

Get you the medical care you need;

Properly investigate the incident;

Identify all possible parties contributing to the incident;

Identify each party's financial incentive in operating the ER;

Identify each party's legal obligations (statues, rules, regulations, policies, standards);

Research each party's history as a defendant and background in general;

Determine the legal and indemnification relationships between all the parties;

Understand the complexities of healthcare insurance, Medicare, Medicaid, etc.

Preserve evidence;

Retain the proper experts when needed;

Know whether the case belongs in federal court or state court;

File suit and advocate for your rights.

At What Cost?

Attorney's representing victims of emergency room errors typically work on a contingency fee basis, and medical malpractice lawsuits are usually the most expensive type of lawsuits to fund because of need for a lot of expert testimony, and an enormous amount of medical records review (in Oklahoma, hospitals are allowed to charge $0.50 per page of medical records copied, and generally do so, often requiring payment in advance; medical records costs of well over $1,000.00 are not uncommon). The attorney typically pays these costs. The question is, is it worth it?

The honest answer is, it depends on the attorney's experience, the time he or she puts into the case, and the facts of the case -- caveat emptor ("let the buyer beware"). Until a case is reviewed and research conducted into the laws affecting the case, the parties, and all the circumstances, it's not just difficult, it's almost impossible to say for sure; if you are harmed, however, there is not any other likely remedy.

What To Do Next

Three things:

Make notes, start a file, keep every piece of paper related to the incident (including healthcare bills, reports, work status, mileage, etc.).
Be cautious in speaking with anyone about the incident, especially insurance representatives.
Find an experienced attorney you trust to review the accident.

Free Consultation

For straight talk and a free consultation, call Allison Legal at 405-702-9900.

We handle cases personally, are experienced in state and federal court, and understand the complexities of the healthcare system, emergency room rules, insurance, and the law. Our fees for such matters are based on contingency; we keep it simple: no recovery, no cost.