Malpractice in Trauma Care: Does the Standard Change?
When you or a loved one is in the emergency room, getting acceptable care should be a given, and most of the time, it is. However, it does happen that doctors make mistakes, and some of those mistakes are so egregious as to constitute a breach of the standard of care. If substandard emergency care happens to you, you may have a case for claiming medical malpractice.Criteria to Establish Medical Malpractice
Like in any other medical malpractice case, there are four criteria that must be established in order to hold a defendant doctor (or hospital, or other medical entity) liable. A duty of care must be established between doctor and patient. An ER doctor automatically has a duty to care for each patient in his or her purview with the appropriately reasonable degree of skill and experience, though the question of the actual standard is often established by expert testimony.
It must also be shown that the standard of care was breached, and breached specifically by the defendant doctor’s conduct, with no intervening cause. Causation in the ER can be difficult to prove, because very often, patients are brought in with severe injury, and it can be difficult to tell whether the existing injury or any misconduct on the part of medical staff actually causes harm. Regardless, actual harm caused is the fourth criteria that must be shown. The injury need not be physical - emotional distress and the like are appropriate - but it must last a certain period, rather than being merely transitory.Who may be Liable?
In California, first responders are protected under the state’s Good Samaritan law, which exempts them from liability, even if they harm the patient they are rescuing. People who are not certified first responders may face liability if they unintentionally harm the injured person further, but police, firefighters and the like are generally immune. However, this law does not extend to ER personnel such as doctors or nurses; essentially, the state’s normal medical malpractice laws as described above remain in effect.
It is also common for the hospital or hospital system to be sued as the doctor or nurse’s employer, under the theory of what California law calls respondeat superior or vicarious liability. The theory of respondeat superior holds that an employer is liable for the negligent acts of their employees, if that employee is acting within the scope of employment at the time of the alleged harm. In the case of ER personnel, it is more likely than not that an employee will be held to have been acting within the scope of employment, given the situation in which the overwhelming majority of patients are injured.Consult a Legal Professional
Being in the emergency room necessitates quick and competent care. If you do not receive it, and you suffer as a result, you may be entitled to compensation. Contact the knowledgeable San Jose medical malpractice attorneys at Corsiglia, McMahon & Allard, L.L.P. for a consultation today; we will do our best to help answer your questions and guide you through the process of bringing suit. We serve San Jose, the Bay Area, and the counties of San Benito, Santa Clara, Monterey, Alameda and San Mateo.