Delay of Treatment and Medical Negligence


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The average patient must wait four hours and seven minutes before they're able to see a doctor in an emergency room in the U.S., according to this ABC News story. Those long delays can lead to plenty of frustration. But they can also exacerbate patients' injuries, and under certain circumstances that can lead to medical malpractice lawsuits.

To be clear, not every long wait in an emergency room will amount to medical negligence and give rise to a medical malpractice lawsuit -- the vast majority won't, in fact. Below is a guide to some waiting room situations that may or may not justify a lawsuit for medical malpractice.

Probably Not Malpractice

Probably Malpractice

A patient becomes extremely annoyed after having to sit squeezed in a crowded ER waiting room for five hours while waiting to get stitches for a cut.

A person suffers long-term health problems as a result of excessive blood loss when emergency room physicians failed to close a wound sufficiently to slow the loss of blood until proper treatment could be rendered.

A patient misses a Super Bowl party while waiting in an emergency room with concussion symptoms after trying to smash a beer can on his head during the pregame party.

An emergency room patient with a concussion collapses from dizziness and breaks a wrist after standing in the waiting room for two hours (due to a lack of seating).

Because of an eight hour wait in an emergency room, a patient misses a date with a romantic partner who is leaving the country the next morning.

A patient dies from severe pneumonia after being refused admittance to an emergency room due to lack of insurance or ability to pay.

A patient who smokes regularly is unable to have a cigarette for more than six hours while waiting in an emergency room with a broken leg.

A patient suffers a pulmonary embolism because a blood clot developed in the patient’s broken leg because blood flow was obstructed for six hours while the patient was waiting for treatment.

A patient breaks his hand by punching an emergency room wall out of frustration after waiting seven hours for treatment of a severe headache.

Doctors are forced to amputate a patient’s hand because the patient had come to the emergency room with restricted blood flow to the hand, and the lack of blood during the seven hour wait allowed gangrene to set in in the hand.

The Malpractice Lawsuit

The facts that could give rise to a lawsuit over unreasonable delay of treatment are infinite. But when patients sue for medical malpractice, courts analyze almost all cases using the same formula. Most medical malpractice lawsuits revolve around two critical elements:

  • negligence on the part of a health care provider, and
  • harm caused by that negligence.

Proving Negligence

In these kinds of cases, the question of whether a doctor was negligent boils down to the question of whether treatment was delayed for too long. But the real question is, “how long is too long?”

That question is answered by determining the appropriate medical standard of care in the treatment situation, and whether the doctor met that standard.

Standard of Care is a legal term that refers to the level of competence that a similarly-skilled and trained doctor would have achieved under circumstances like the one in the instant case. In delayed treatment cases, the standard of care might require a doctor or hospital to:

  • accept an imperiled patient immediately despite a line in an emergency room
  • stabilize a patient, even if the patient cannot be fully evaluated immediately
  • recognize the potential danger of delaying treatment when the patient is first seen, or
  • keep an emergency room sufficiently staffed to deal with a reasonable amount of emergencies simultaneously.

In the vast majority of cases, proving the standard of care requires medical expert testimony. The patient (usually through an attorney) consults an expert witness who offers an opinion as to the quality of care that most doctors would have provided in similar circumstances -- what would a reasonably competent doctor have done?

Breach of the Standard of Care means methodically establishing how the doctor or hospital breached the standard of care -- what the doctor actually did (the breach), against the backdrop of what he or she should have done (the standard).  For example, if the standard of care required a doctor to stabilize a heart attack patient immediately upon the patient's arrival at an emergency room, the doctor was probably negligent in failing to do so.

Showing Harm Caused by the Negligence

In order to win a medical malpractice lawsuit, the 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
  • loss of earning capacity, and
  • loss of the ability to enjoy life’s pleasures.

This can be tricky in a medical malpractice case where the only alleged error is one involving a delay in treatment. The injured patient needs to show that, not only did the delay rise to the level of negligence, but the delay also caused a worsening of the patient's condition such that compensation is necessary. (Learn more about Types of Compensation in Medical Malpractice Cases.)

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