The American Medical Association states on its website, “A physician who specializes in Emergency Medicine focuses on the immediate decision making and action necessary to prevent death or any further disability both in the pre-hospital setting by directing emergency medical technicians and in the emergency department. This specialist provides immediate recognition, evaluation, care, stabilization, and disposition of a generally diversified population of adult and pediatric patients in response to acute illness and injury.”
The American Academy of Emergency Medicine (AAEM) states on its website that it is “the specialty society of emergency medicine. We are a democratic organization committed to our principles and standing up for our members. We are the champion of the emergency physician … AAEM was established in 1993 to promote fair and equitable practice environments necessary to allow emergency physicians to deliver the highest quality of patient care.”
Some states have enacted laws that cloak emergency room physicians with greater protection from medical malpractice claims. For instance, in Georgia, “In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.” Georgia Code, Section 51-1-29.5. “Gross negligence” is defined as the absence of even slight diligence, and slight diligence is defined in OCGA § 51-1-4 as “that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances.” The Georgia Supreme Court has stated, “Applying this definition in the context of a medical malpractice action brought pursuant to § 51-1-29.5 (c), liability would be authorized where the evidence, including admissible expert testimony, would permit a jury to find by clear and convincing evidence that the defendants caused harm by grossly deviating from the applicable medical standard of care.”
Under the Texas Medical Liability Act, Section 74-153, “In a suit involving a health care liability claim against a physician or health care provider for injury to or death of a patient arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, the claimant bringing the suit may prove that the treatment or lack of treatment by the physician or health care provider departed from accepted standards of medical care or health care only if the claimant shows by a preponderance of the evidence that the physician or health care provider, with wilful and wanton negligence, deviated from the degree of care and skill that is reasonably expected of an ordinarily prudent physician or health care provider in the same or similar circumstances.” A Texas Appellate Court has stated that the Texas Legislature intended “wilful and wanton negligence” as used in section 74.153 of the civil practice and remedies code to mean “gross negligence.” “It is the defendant’s state of mind – whether the defendant knew about a peril but nevertheless acted in a way that demonstrated that he did not care about the consequences – that separates ordinary negligence from gross negligence.”
What is the harmful result of these special laws that protect emergency room physicians from being held responsible for their negligent care of patients? Patients in Georgia, Texas, and states with similar insulating emergency medicine medical malpractice laws are required to overcome higher and more difficult burdens than other similarly injured medical malpractice victims, simply because they received care from emergency room physicians or in emergency rooms. But why should patients injured (or worse) as a result of medically negligent care in an emergency room be treated differently and prejudiciously when seeking compensation for the harm they suffered? The simple answer is they should not be treated any differently based on who provided the care or where the care was provided: any patient who is harmed as a result of a health care provider who breaches the standard of care applicable at the time and under the circumstances of the care should be subjected to the same rules, procedures, and laws regarding seeking and obtaining compensation for the harm they suffered, no matter who provided the negligent medical care or where the negligent medical care was provided.
If you or a loved one suffered harm as a result of emergency room negligence in the United States, you should promptly find a medical malpractice lawyer in your state who may investigate your emergency room medical malpractice claim for you and represent you or your loved one in a emergency room malpractice case, if appropriate.
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