16 Mich. St. U. J. Med. & L. 1Michigan State University Journal of Medicine & Law

Fall, 2011

A LOOK BEHIND THE CLOSED DOORS OF THE EMERGENCY ROOM - A MEDICAL/LEGAL PERSPECTIVE

Hadley Hamilton, Samuel D. Hodge, Jr. a1

Copyright © 2011 Michigan State University Journal of Medicine & Law; Hadley

Hamilton, Samuel D. Hodge, Jr.

I. Emergency Medicine 3A. The Increasing Popularity of Emergency Rooms 4B. The Most Common Reasons For Visits To the ER 6C. How Does The ER Work? 81. Triage 82. Registration 103. Initial Physician Evaluation 104. Diagnostic Testing 125. Diagnosis and Disposition 136. Emergent Care versus Urgent Care 14D. Mandatory Reporting in the Emergency Room 16II. Legal Considerations 17A. Liability of Independent Contractors 18B. Emergency Medical Treatment and the Active Labor

Act21

C. Disciplinary Action for the Failure to Diagnose 25D. The Failure to Properly Treat Chest Pain 261. Diagnostic Testing 262. Patient Negligence in Refusing Medical Treatment 303. Failure to Recommend Admission to the Hospital 32E. Injuries Sustained by Visitors to the Emergency Room 33III. Conclusion 35

No one should have to choose between medicine and other necessities. No one should have to use the emergency room every time a child gets sick. And, no one should have to live in constant fear

that a medical problem will become a financial crisis.- Brad Henry

The film industry's depiction of the emergency room (“ER”) usually includes a group of health care

workers frantically trying to revive an unconscious patient being rushed on a gurney to the treatment

room. In this vision, there is one medical crisis after another, with physicians frequently pulling

patients back from the brink of death. Those who have actually spent any significant amount of time

waiting to be seen in an ER provide a different observation. These individuals often perceive the ER

as just a large waiting area filled with people suffering from every conceivable illness. There also

seems to be no logic as to the order in which patients are seen. These patients are often puzzled by

the endless delay since it appears that few people are called to be treated.1

The reality is that the ER is both chaotic and dull. No other medical professional sees as broad of a

spectrum of medical conditions as the ER physician. Sometimes the doctors are treating immediate

threats to life, such as heart attacks or strokes, while on other occasions, they are treating such

mundane problems as colds or sprained ankles.2 Many people have negative perceptions of the ER,

but this merely reflects a lack of understanding of how an ER actually works.

This article is divided into two parts in order to provide the reader with a multifaceted overview of the

modern ER. The first section will present an overview of how ERs work and why these facilities

routinely treat more than just those with true medical emergencies. This will be followed by an

analysis of some of the more common legal issues that arise in running these facilities from medical

malpractice to premises liability.

I. Emergency Medicine

Emergency Medicine (“EM”) is a medical specialty that focuses on the rapid assessment and

diagnosis of acute illnesses and injuries followed by the stabilization and management of the

patient.3 Once stabilized, the patient is either admitted to the hospital for further care or is discharged

for follow up as an outpatient with an appropriate physician.4 Unlike other medical specialties, EM

physicians do not perform any long-term treatment of their patients and often will not see these

individuals again after discharge. This is in contrast to other specialties, such as internal medicine or

pediatrics, where the physician develops a long-term relationship with the patient and sees the

person multiple times.5

Not all physicians working in ERs are certified specialists in EM. Accreditation standards do not

require ER physicians to be board certified in order for a hospital to receive accreditation. The

standards simply require that a physician working in the ER be a qualified emergency

physician.6 Unfortunately, there is no clear cut definition of what constitutes a qualified emergency

physician. In a small rural hospital, a family practitioner may be sufficient.7

Whether an ER is staffed with board certified EM physicians is a function of availability, geography

and policy. ERs are more likely to be manned by board certified personnel in urban areas as

opposed to distant rural environments with fewer physicians and fewer hospitals. The presence of a

large medical center or trauma center increases the likelihood of board certification as a prerequisite

to a physician working in the ER. Ultimately, the choice of *4 whether to require an ER physician to

be board certified in EM is up to the individual hospitals and the groups of physicians that staff ERs.8

A. The Increasing Popularity of Emergency Rooms

The number of ER visits has skyrocketed over the past decade.9 A recent study found that there

were over 119 million ER visits in 2006.10 This works out to 40.5 ER visits per 100 people.11 This

increase appears to be due to a multitude of factors: the availability and convenience of the ER; the

increasing dearth of primary care physicians; the difficulty of seeing a primary care physician; the

Emergency Medical Treatment and Active Labor Act (“EMTALA”), which mandates for treatment

regardless of the patient's ability to pay; and even the current economic downturn.12 Some of the

main reasons for this increasing utilization of ERs are simply that they are convenient, no

appointment is necessary, the ERs are always open, and are often geographically convenient. Many

urban and suburban areas have multiple hospitals scattered around the town. In order to be seen, a

person simply walks into the ER and requests treatment.13

This stands in stark contrast to the typical arrangements required to see a private physician. Most

private health care providers require an appointment. Unfortunately, obtaining an appointment in a

timely manner is an increasingly difficult proposition. The number of primary care physicians

available to see patients has also been declining.14 This decline leaves an increasingly limited

number of family doctors available to see an ever increasing number of patients.15 The result is a

backlog of patients who must wait longer and longer *5for appointments simply because there are

fewer physicians available to treat them. Also, appointments are generally only available weeks in

advance and even then are subject to cancellation for a variety of reasons. Add to this mix the

limited office hours of most practitioners, and the convenience of the ER begins to emerge. In the

face of an acute illness or injury, it is a matter of common sense that an individual will seek the most

rapid form of treatment for a condition.16

Another factor prompting increased ER use is based on the EMTALA mandate that any person

presented to the ER must be seen regardless of the ability to pay.17 Most private practitioners

demand payment in advance or at the time service is rendered. Many people who require medical

attention may be unable to provide this form of upfront payment. However, these individuals can go

to the ER and be treated without having to satisfy this condition. This does not mean the care is free;

the patient is expected to ultimately provide payment at some point in time. Unfortunately, for many

people, especially those in lower income brackets, they may never realistically be in a position to

reimburse the ER. It should become apparent that due to this remedial legislative mandate, an

individual can always be seen in an ER even if that person has an outstanding bill from previous

unpaid visits to the facility.18 Contrast this with many private physician offices that will refuse to see a

patient whose account is in arrears.19

There are a myriad of reasons for the rising use of ERs, but the combination of accessibility,

convenience, and treatment without regard to payment are some of the more important reasons for

the surge in popularity. These factors become even more important in periods of economic

recession. When people lose their jobs, they often forfeit their health insurance or the ability to

maintain coverage. The willingness of the ER to see any patient regardless of ability to pay becomes

a critical lifeline for the healthcare of these uninsured individuals.20

*6 B. The Most Common Reasons For Visits To The ER

People come to the ER for a multitude of reasons. Sometimes these reasons are true emergencies,

but, often times, they are not. The following is a partial list of reasons individuals visit these types of

facilities:

• Sports injuries

• Car accident

• Broken bones and cuts from accidents and falls

• Burns

• Uncontrolled bleeding

• Heart attacks, chest pain

• Difficulty breathing, asthma attacks, pneumonia

• Strokes, loss of function and/or numbness in arms or legs

• Loss of vision, hearing

• Unconsciousness

• Confusion, altered level of consciousness, fainting

• Suicidal or homicidal thoughts

• Overdoses

• Severe abdominal pain, persistent vomiting

• Food poisoning

• Blood when vomiting, coughing, urinating, or in bowel movements

• Severe allergic reactions from insect bites, foods or medications

• Complications from diseases, high fevers21

The most frequent reasons that patients visit the ER can be categorized into several broad

categories classified as chief complaints. A chief complaint (“CC”) is what the patient tells the triage

staff when asked why he or she came to the ER. It is important to distinguish between a CC and the

actual underlying cause of that complaint, which is the diagnosis.22 For example, chest pain is a CC.

The lists of things that can actually cause chest pain are myriad, such as pneumonia, heart attack,

muscle strain, indigestion, gallstones, and so on.23 If one of these conditions is found to be the

source of the chest pain, then this condition is the diagnosis.24

*7 CCs tend to vary by age. People under the age of fifteen most commonly complain of fever,

vomiting, or cough.25 Between the ages of fifteen to sixty-four, the most common maladies are chest

pain, abdominal pain, back pain or headache.26 Those sixty-five or older generally complain of

shortness of breath, weakness, and dizziness, in addition to assertions of chest and abdominal

pain.27 While some of the complaints are similar across different age groups, the underlying causes

can be very different. For instance, a teenager and a fifty year old man may both present with

complaints of chest pain, but the underlying diagnosis is likely to be very different. The more

prevalent diagnoses in the teenage age range are pneumonia or a musculoskeletal strain, while the

middle-aged man is much more likely to have cardiac disease as the source of the discomfort.28

Injury is another significant source of ER visits. In 2006, there were over forty-two million ER visits

for accidental injuries.29 The most common causes of injuries seen in the ER are falls, motor vehicle

accidents, and accidental lacerations. In this regard, the head and neck are the most frequent areas

examined in the ER.30 Non-fatal falls in older adults accounted for 2.2 million ER visits in 2008, with

over 500,000 victims requiring subsequent hospitalization for their injuries.31 Motor vehicle accidents

account for a significant portion of ER visits. In 2005, there were 45,000 motor vehicle accidents in

the United States resulting in more than 3.4 million ER visits.32

*8 C. How Does The ER Work?

Despite the increasing number of ER visits every year, many people have never set foot in this type

of facility. Luckily, the general flow of patients through the ER is almost the same across the country.

The major steps are triage, registration, and evaluation/treatment by medical personnel.33

1. Triage

A major misconception held by many people is that an individual is seen by a physician in the ER in

the order of arrival. This approach would be tantamount to taking a number upon arrival at a bakery

and simply waiting your turn. Nothing could be further from the truth. The order in which patients are

seen is logically determined by the presentation and seriousness of the symptoms. Those individuals

with unstable vital signs or severe, life-threatening illnesses or injuries are examined before people

with less emergent conditions.34

Triage is the name applied to the process used in the ER to determine what order patients should be

seen. When a patient steps into an ER, triage is the first thing that happens. This protocol is used to

establish a rough gauge of the severity of the patient's condition. The person is seen by a nurse or

physician who performs an initial interview ascertaining why the patient is at the ER. The triage

nurse records vital signs and performs a very brief physical examination focused on the CC. The

information is then used to classify the patient in order to determine in what order the person will be

seen by a physician in relation to the other patients in the facility's waiting room.35

The triage process applies to all patients entering the ER. Often, a patient in the waiting room feels

that he or she has waited an interminably long time without being seen. This feeling is exacerbated

by the perception that there are relatively few other patients in the waiting room, so the ER must not

be that busy. What the patient does not appreciate is that the activity taking place is behind the

waiting room door and in the actual ER. Ambulance patients generally arrive by a separate entrance.

These patients are often placed directly into a treatment room without going to the waiting room.

Multiple ambulances can arrive simultaneously, creating a traffic jam in the ER that is not visible to

the patients waiting to be seen. Additionally, physicians may have to respond to “codes” or

emergency patient resuscitation efforts in other *9 parts of the hospital;36 this results in fewer

physicians staffing the ER and increased wait times.37

While each hospital may have its own unique triage classification protocols, patients generally fall

into three broad categories.38 The first category is for patients experiencing medical conditions that

are immediate threats to life, such as severe bodily injury, heart attacks, or patients in respiratory

distress. These patients often have severe derangements in their vital signs or a grossly abnormal

physical exam. The second category is for those with acute but not current life-threatening

conditions. An example would be a patient with a fever and cough but no difficulty breathing. These

patients may have altered vital signs or physical exam findings, but not ones that are an immediate

danger to life. The third classification is reserved for patients with less urgent or non-emergent

complaints, such as a simple ankle injury, whiplash or longstanding rash.39 These patients generally

have normal vital signs and minimal physical exam findings.40

Triage is an ongoing process that requires intermittent re-evaluation if there is a delay in having the

patient treated by a physician. ERs can become extremely crowded, with resulting wait times

stretching into hours.41 A patient that was initially triaged as urgent but not life threatening could

easily move into the emergent category if that person's condition deteriorates. Obviously, increased

legal liability could attach if the hospital fails to appreciate such deterioration in a patient's condition

while waiting to be seen. To prevent this from happening, hospitals must frequently re-evaluate

patients that *10 are still waiting to see a physician.42 Often, the triage staff will repeat vital signs on

waiting patients at frequent intervals as well as reassess their physical examination.43

2. Registration

The next step after triage is for hospital personnel to register the patient. This process is

unimaginatively called registration. Sometimes, this procedure occurs at a kiosk near the waiting

area.44 Some progressive hospitals use bedside registration that takes place if the patient has

already been taken to a treatment room before the person could be registered in the lobby. The

process is straightforward. First, the patient, or the patient's representative if the individual is too ill,

answers questions concerning personal information, such as address, phone number, insurance

information, emergency contacts, and a host of other demographic information. Second, this

information is used to create a unique hospital identification wristband as well as a chart for the

patient where information concerning diagnosis and treatment will eventually be stored. Registration

is also the place where insurance authorization is obtained, and co-payment received.45

3. Initial Physician Evaluation

Once the patient has been triaged and registered, the next step is for the patient to be seen by a

physician. The individual is taken to an examination room within the ER complex. This exam room

may be determined by the patient's CC or condition. For example, some ERs have separate exam

rooms for pediatric patients.46 Those with the most life-threatening conditions are *11 often put in

major resuscitation rooms that have more specialized equipment in case the patient's condition

deteriorates and requires emergent treatment, such as intubation or defibrillation. Many ERs have

separate areas for non-emergent patients as well.

Once a patient is in the exam room, a nurse will evaluate the patient and take a more detailed

history of the illness or condition. The nurse often performs a more thorough physical assessment of

the patient than the staff at triage. This information is placed in the chart and given to the physician

who will evaluate the patient.47 The patient may also be placed in a gown to allow the doctor to

perform a thorough physical exam.

The next step is for a history and physical evaluation by the actual EM doctor. The physician will

take a detailed history of the CC directly from the patient. The physician will then ask a series of

questions designed to elicit when the problem began and its progression to that point in time. A

thorough review of the pertinent organ systems is also obtained. The initial history will include

inquiries about the patient's past medical or surgical history, medications taken, family history of

medical problems, and whether the person uses tobacco, alcohol, or drugs.48

After the medical history is obtained, the next step is the actual physical examination. The physician

performs a detailed examination that is appropriate to the CC or symptoms described. With an

isolated problem, like an ankle injury, it is generally not necessary to perform detailed examinations

of unrelated areas, such as looking at the eardrums or nose. On the other hand, a vague complaint,

like a headache or dizziness, may necessitate a thorough, head-to-toe examination, looking for clues

as to the cause of the illness.49

The purpose of the detailed history and physical exam is to allow the EM physician to develop a list

of differential diagnoses and subsequently attempt to “rule them out” until the final diagnosis is

established. If the physician is unable to exclude a possible diagnosis based on the history and

physical examination, then the patient may undergo diagnostic testing to further evaluate the

complaints.50

*12 4. Diagnostic Testing

Diagnostic testing in the ER falls into two main categories: laboratory tests and imaging studies. The

main exception is the electrocardiogram, more commonly known as ECG, which is an

electrophysiological test.51 Lab studies are a series of assays and tests performed on the fluids from

the patient's body. The fluids most commonly tested are blood and urine but can be almost any

liquid, from spinal fluid to pus drained from an abscess and everything in between. The precise lab

test depends on the information sought. If the patient is suspected of having an infection, the

physician will order a CBC, or complete blood cell count, which in turn will reveal the level of white

blood cells in the blood.52 An elevated white cell count is indicative of an infection. Similarly, if the

physician suspects a urinary tract infection, the urine will be sent for lab analyzed by the doctor or

sent to the lab for analysis.53

Diagnostic imaging is important in establishing or ruling out a diagnosis. Hospitals have a wide array

of diagnostic imaging equipment, but not all of it is routinely used in the ER. Instead, the kind of

imaging studies ordered reflects the need for rapid treatment and diagnosis. Modalities such as plain

film X-Rays and CT scans can be performed rapidly and yield a great deal of information.54 These

studies are also generally available around the clock. Other imaging modalities, such as MRI, are

often only available on specified days and during certain hours. MRI imaging can also take up to an

hour to perform compared to CT scans, which can often be completed in sixty seconds. Imagine

trying to obtain an MRI of the head on a combative or non-cooperative patient. Even if the patient

could hold still for the required time, there is a significant time delay introduced by an MRI (one hour)

compared to a CT Scan (sixty seconds). This hour can mean the difference between life and death if

the delay in treatment proves fatal to the patient.55

*13 5. Diagnosis and Disposition

The ER physician now synthesizes all of the information learned from evaluating the patient and the

diagnostic tests to arrive at a diagnosis and disposition. The diagnosis is the identification of the

underlying reason or cause of the patient's signs and symptoms. Disposition, simply put, is what

happens to the patient when he or she leaves the ER. While not all patients may have an accurate

diagnosis when that individual leaves the ER, all patients must have a disposition before departure.56

The ER physician seeks to provide a diagnosis for every patient, but the degree of specificity of that

diagnosis varies greatly. An illness or injury capable of being identified accurately is subject to a very

specific diagnosis. An example would be a fracture of the radius bone in the forearm. This is the

large bone in the lower arm on the side of the thumb. The doctor orders an X-ray that clearly reveals

the problem, so the diagnosis is essentially a “fractured radius.” Sometimes, however, the diagnostic

test fails to show a clear cause for the patient's condition. In this situation, further tests may be

needed, or a specialist must be consulted to arrive at a more precise diagnosis. Often, this leaves

the patient with a nonspecific diagnosis that is just descriptive of the reason the person presented to

the ER in the first place.57 An example would be a patient with abdominal pain. The physical exam

may not show a clear-cut cause for the pain, and the diagnostic testing may be normal. In this

instance, the patient receives a diagnosis of “nonspecific abdominal pain” since all of the testing

failed to reveal the exact underlying cause of the discomfort.58 Similarly, a patient presenting with a

CC of coughing may have a normal exam and testing that ultimately leaves the person with a

diagnosis of an unspecified cough.

While diagnostic accuracy is not always required in the ER, an accurate disposition is always

mandated.59 Ultimately, the ER physician must decide what to do with the patient. This decision is

split into two pathways: either the patient (1) can safely be discharged for treatment and receive

follow-up care as an outpatient or (2) the patient must be admitted to the hospital for further testing

or treatment that, for a variety of reasons, must be done as an inpatient. Depending on which path is

chosen, the patient is either admitted *14 to the hospital or discharged to continue the care with a

physician outside of the hospital. There is no universal algorithm for which illnesses or injuries must

be treated in the hospital and which are amenable for outpatient care. This decision must be based

on many factors, including the reliability of the patient, the access to follow up care, the severity of

the symptoms, and the overall condition of the patient. Local customs also dictate which conditions

are treated in the hospital, and which are not. For example, certain types of bone fractures may

routinely be admitted in Philadelphia but almost always sent home for outpatient follow up in

Fresno.60

If the patient requires admission to the hospital, an “admitting physician” may be consulted.61 It is

generally the task of the ER physician to find a doctor who will agree to take over the care of the

patient during the rest of the hospitalization. The admitting physician must have privileges granted by

the hospital to admit patients at that facility. ER doctors do not admit patients and lack admitting

privileges at most facilities. Once the admitting physician has accepted responsibility for the patient,

further care of the patient is transferred. This acceptance then severs the ER doctor's relationship

with the patient.62

After accepting the patient, the admitting physician coordinates with the hospital staff to find a room

for the patient. The admitting physician also assumes all responsibility for determining the treatment

plan as well as coordinating specialist consults. This physician is also responsible for arranging

follow-up care once the patient leaves the hospital.63

6. Emergent Care versus Urgent Care

Many people do not know the differences between an urgent care center and an ER. Some may

even have the mistaken notion that an urgent care facility is really just a small or satellite ER. In one

sense, this may be partly true because some urgent care centers can deal with a variety of the same

injuries or illnesses commonly treated in ERs, like sprains, strains, or the flu. However, there are

vast and significant differences between the two entities. *15 Urgent care centers are neither

equipped to deal with life-threatening emergencies nor are they required to do so for the most part.64

The past several decades have seen a proliferation of urgent care centers.65 Urgent care centers

serve to fill the growing gap between increasingly unavailable primary care physicians and the

increasingly overcrowded ER. There are numerous reasons to explain the increasing popularity of

these clinics. First, the clinics are convenient because no appointment is required, and they may be

open late at night or on weekends when physician offices are normally closed. Second, these urgent

care centers can provide a hybrid of services that traditionally were performed by either the primary

physician or the ER. Depending on the clinic, they can treat a variety of conditions from simple

lacerations and fractures to providing antibiotics or IV fluids for other illnesses. Third, these facilities

are often much less expensive than the traditional ER, with many services offered for less than a few

hundred dollars.66 Finally, these urgent care clinics often have minimal waiting times compared to

increasingly overcrowded ERs, where patients with less acute conditions may face significant delays

in view of the needs of the more critical patients.67

Perhaps the most striking difference is which patients each facility is required to treat. Under

EMTALA,68 an ER must evaluate and stabilize any patient that presents to the facility regardless of

his or her ability to pay. The EMTALA treatment mandate, however, does not apply to urgent care

clinics. These facilities may refuse treatment to individuals who are unable to demonstrate an ability

to pay for care.69

Another difference between the two types of facilities is in the acuity and severity of the illness or

injury that each is able to treat. ERs treat the full panoply of critical illnesses and injuries, and there

is a rigid classification system for determining the ability of certain hospitals to treat critically

injured *16 patients.70 Urgent care clinics are unregulated entities for the most part. While states

require physicians to be licensed, they generally do not require accreditation of urgent care

clinics.71 This leads to significant differences between individual clinics in their hours of operation,

available equipment, and services offered. This is in stark contrast to the level of regulation and

adherence to uniform codes required of hospitals and ERs by the Joint Commission, formerly called

the Joint Commission on Accreditation of Healthcare Organizations.72 The bottom line is that urgent

care clinics are not required to be able to treat any set group of illnesses or injuries. For instance,

while ERs are required to have the basic equipment to diagnose and treat heart attacks, urgent care

clinics are under no such obligation. In this sense, individuals with severe or life-threatening injuries

should always present to the ER. If the patient shows up at an urgent care facility with such

complaints, then in all likelihood, the facility will refer the individual to the nearest ER or call an

ambulance to transport him/her there. The urgent care facility simply will not have the equipment,

time, or motivation to deal with such patients.73

D. Mandatory Reporting in the Emergency Room

Every state requires physicians to report certain types of illnesses or situations to the local

authorities.74 State legislatures determine exactly what conditions must be reported, so there are

significant variations from state to state.75 Mandatory reporting laws are of special concern to the ER

physician because of the unique nature of the ER itself. The ER is often the first stop *17 for people

with issues relating to acute illnesses, accidents, or physical injuries, all of which may be subject to

mandatory reporting requirements.

The types of things that require reporting to the authorities are diverse and range from gunshot

wounds to certain infectious diseases. The conditions commonly requiring reporting can be divided

into three broad categories: injuries from abuse, injuries from crimes, and conditions that cause

impaired operation of a vehicle.76

An injury from abuse includes child, elder, and domestic partner/spousal abuse. Every state requires

physicians to report instances of child abuse; a majority of states require the reporting of instances

of suspected child abuse.77 The more contentious categories are domestic and elder abuse since

there is no clear consensus on reporting. For instance, reporting elder abuse is mandatory in all but

eight states.78 Even fewer states require reporting of domestic violence, with only six states requiring

reporting.79 Additionally, many states require mandatory reporting of injuries from weapons and

crimes, such as assaults or gunshot wounds. Currently, a minority of states require physicians to

report individuals with conditions that impair the ability to drive, such as epilepsy or recurrent

episodes of syncope.80

The ramifications for a physician failing to report a mandatorily required condition can be severe.

Currently, forty-six states can impose criminal penalties against doctors failing to report episodes of

child abuse that the physician knew about or “should have known” about.81 Even if there are no

criminal penalties, failing to report can lead to legal liability in certain situations. For example, the

failure to report impaired drivers has led to physician liability for injuries to third parties caused by

that impaired driver.82 While only six states have mandatory reporting laws for impaired drivers,

thirty-two states grant legal immunity to physicians reporting such drivers (leaving eighteen states

without such immunity provisions).83

II. Legal Considerations

Litigation involving the ER is naturally focused on medical malpractice. However, this is not the only

areas of responsibility. Other common issues include the liability of hospitals for injuries to third

parties in the ER and *18 holding the health care facility liable for the actions of independent

contractors who staff the ER.

A. Liability of Independent Contractors

A number of hospitals have set up departments, including the ER, as independent contractors to

reduce their exposure for professional negligence.84 Instead of staffing and paying for the running of

the ER, outside groups run the facility and pay the hospital a percentage of the revenues. This way,

the hospital provides the much-needed services to its patients but does not have the day-to-day

responsibility in running the department. It also has the advantage of establishing an independent

contractor agreement when it comes to lawsuits arising out of the negligence of the employees of

that department. The following is a sample clause in a contract between the hospital and outside

agency supplying ER services:

Anything contained in this entire Agreement to the contrary notwithstanding, it is the intent and

purpose of the parties hereto that the relationship of each to the other shall be that of an

independent contractor. Company shall neither have, nor exercise or reserve, any control or

direction, or right to control or direct, over the methods by which the Independent Contractor shall

perform the services required under this Agreement The parties hereto further agree that the

Independent Contractor shall not be deemed to be an employee of Company, but shall only be

deemed a non-exclusive independent contractor of Company, and that this Agreement calls for the

performance of services by the Independent Contractor as an independent contractor, and that at no

time shall the Independent Contractor be considered as an employee, partner, joint venture or

business associate of Company for any purpose whatsoever. Nothing herein contained shall in any

way be considered or construed as creating the legal relationship of employee or employer, agent or

principal, or partnership between the Independent Contractor and Company. None of the parties

hereto is to be considered a partner, an agent or an employee of the other, and/or of the principals

thereof, for any purpose whatsoever.85

The problem with this approach is that patients have no idea that the hospital has contracted out the

services of the ER and signed this type of agreement. Instead, individuals believe that they are being

treated by hospital employees and not an outside group.

*19 Despite this language establishing an independent contractor relationship and the efforts by

hospitals to distance themselves from the physicians providing care, there is a trend to hold

hospitals vicariously liable for the negligence of independent contractor physicians under a number

of agency theories. Courts have found liability based upon ostensible agency, apparent agency,

agency by estoppel, and a non-delegable duty.86 For example, in Osborne v. Adams, the South

Carolina court held that a hospital has a “duty to its [ER] patients to provide competent medical care”

and this obligation “has evolved into a non-delegable duty. Thus, hospitals are liable for the

negligence of its [ER] physicians, even if they are designated as independent contractors.”87 The

linchpin for such a finding of a non-delegable duty is “the nature of [ER] operations and the public

perception of the unity of hospitals and their [ERs]. State regulations also require all hospitals to

maintain an [ER] twenty-four hours a day.”88 After all, “one cannot choose to pass by the nearest ER

following a sudden injury or illness” and “the operation of an [ER] is a vital service for the

community.”89

This result, however, is not always a certainty, especially if the health care facility clearly makes its

relationship with the hospital as an independent contractor known to the patient. For example, in

Guadagno v. Lifemark Hospitals of Florida, the plaintiff was injured while riding a bike.90 When taken

by paramedics to the ER at Palmetto General Hospital, the patient signed admission documents that

acknowledged the ER doctor as an independent contractor and not a hospital agent or

employee.91 The plaintiff was found to have a “small *20 fracture of the greater trochanter of the right

leg Dr. Valdes was the [ER] physician on duty.”92 Since the leg fracture was not one that required

admission to the hospital, the patient was discharged and told to follow up on Monday, or three days

later.93 The patient “went home and stayed immobile for the next several days, expressing a great

deal of pain.”94 On Tuesday, her family took her to the hospital where she died in the ER from a

pulmonary embolism.95 The decedent's family sued the hospital on the theory of vicarious liability for

the malpractice of Dr. Valdes who was employed by the contractor for ER services to the

hospital.96 The court was not impressed with the plaintiff's arguments and noted that the evidence

established that Dr. Valdes was an independent contractor.97“Generally, a hospital may not be held

liable for the negligence of independent contractor physicians to whom it grants staff privileges.

However ‘[u]nder certain circumstances a hospital may be held vicariously liable for the acts of

physicians, even if they are independent contractors, if these [doctors] act with the apparent

authority of the hospital.”’98 In this case,

[T]here was no evidence that the doctor was an actual agent of the hospital. The [ER] documents

signed by the decedent upon her admission [noted] that the doctor [was] an independent contractor

and not an agent or employee of Palmetto. An apparent agency exists only if all three of the

following elements are present: (a) a representation by the purported principal; (b) a reliance on that

representation by a third party; and (c) a change in position by the third party in reliance on the

representation. None of these elements was established at trial [A]pparent authority exists only

where the principal creates the appearance of an agency relationship, and in this case Palmetto

General Hospital expressly disavowed an agency or employee relationship, conveyed that

information to the decedent, and the decedent acknowledged this fact by signing the admission

documents.99

Some jurisdictions have resolved this issue by statute. For example, the Pennsylvania legislature

has determined that:

A hospital may be held vicariously liable for the acts of another health care provider through

principles of ostensible agency if the evidence shows that a reasonably prudent person in the

patient's position *21 would be justified in [believing] that the care in question was being rendered by

the hospital or the care in question was advertised or otherwise represented to the patient as care

being rendered by the hospital....100

Alaska requires both notice of the relationship between the doctor and hospital and the posting of

signs about that relationship.101 More specifically, the statute provides that a hospital is not liable for

damages as a result of the negligence of an ER physician who is not an employee of the hospital as

long as the hospital provides notice that the ER physician is an independent contractor, and the ER

physician is insured.102 The notice must also:

(1) be posted conspicuously in all admitting areas of the hospital; (2) consist of a sign at least two

feet high and two feet wide, with print at least two inches high; (3) be published at least annually in a

newspaper of general circulation in the area; and (4) be in substantially the following form:

Notice to Hospital Users and Notice of Limited Liability

(Name of hospital) may not be responsible for the actions of emergency room physicians in (name of

hospital's emergency room). The following emergency room physicians are independent contractors

and are not employees of the hospital: (List specific emergency room physicians)103

B. Emergency Medical Treatment and the Active Labor Act

EMTALA is a federal law designed to prohibit “patient dumping,” i.e., the practice of refusing to treat

patients who are unable to pay.104It was not intended to be utilized as either a federal malpractice

law or a national standard of medical care,105 “[r]ather, it serves as a gap filler to give a remedy for

the ‘failure to treat,”’ which theory is usually not included within state malpractice laws.106 This federal

legislation establishes a cause of action for those who are injured either by a participating hospital's

failure to (1) provide them with an “appropriate medical screening” to see if an emergency medical

condition is present or (2) “to ‘stabilize’ the [individual] before transfer or discharge if a statutorily

defined emergency medical [problem] has been de- *22 tected.”107 EMTALA does not create a cause

of action for medical malpractice nor does it provide for a cause of action against an individual

physician.

A cause of action may be created under one of two theories. The patient “‘may establish that the

hospital did not meet [the statutory] requirements because the hospital's screening examination was

not appropriate,”’ or the patient “‘may establish that the [health care facility] determined that an

emergency medical condition existed [but] failed to stabilize the condition or transfer the patient to

another hospital.”’108 EMTALA does not establish a national standard of care for what constitutes an

appropriate medical screening exam. It only requires that whatever screening exam the hospital has

developed is appropriate and that it is applied uniformly to all individuals who present to the

ER.109 The statute has no provisions for what must be covered in the screening.110 Each hospital is

tasked with developing its own particular screening procedure for ER patients. A screening exam is

appropriate as long as it is “reasonably calculated to identify critical medical conditions that may be

afflicting symptomatic patients and provides that level of screening uniformly to all those who present

substantially similar complaints.”111

There is no cause of action under EMTALA for a medically inadequate screening exam; such

failures are pursued under medical malpractice or negligence claims.112 The complete failure to

screen a patient is, however, an EMTALA violation. In Correa v. Hospital San Francisco, a 65 year

old widow presented to the ER complaining of chest pain, dizziness, and sweating.113 She took a

number and waited over two hours without ever being seen.114 Family members then took her to a

private physician's office where she was treated briefly for low blood pressure.115 The patient did

poorly, required immediate resuscitation but ultimately died in the office a short while later.116 The

court recognized that a faulty screening exam did not contravene the statute, but the egregious

failure to perform even a perfunctory exam on an older woman with chest pains was improper.117 The

hospital failed to produce *23 any evidence that the victim received any screening, monitoring of vital

signs, or even a written chart.118 The court took this as evidence of disparate treatment and that the

victim did not receive the same screening exam that other similarly situated patients with chest pain

would have received.119

A medically inadequate screening exam, as long as it is applied equally to all patients, does not

violate EMTALA. In Jackson v. East Bay Hospital, Mr. Robert Jackson (“Jackson”) presented to the

ER three times over several days complaining of hallucinations, dizziness, and unsteadiness.120 He

had a history of borderline intellectual functioning, psychotic disorder, and pedophilia.121 The ER had

an unwritten policy that any patients with psychiatric complaints that presented to the ER would be

evaluated for medical problems.122 If no medical problems were found, then the patient would be

sent to the psychiatric area of the hospital for further evaluation and treatment.123Jackson was seen

on April 2 with the above complaints and was diagnosed with a psychiatric condition as opposed to

any form of medical condition.124 He returned to the ER two days later with complaints of chest pain,

dry heaves, and sore throat.125 An ER physician performed a complete history and physical as well

as ordering a variety of tests.126 The urine drug screen revealed Jackson was taking tricyclic

antidepressants.127 He was diagnosed with chest contusions, hypertension, and psychosis and

subsequently discharged home after a psychiatric evaluation revealed him to be non-suicidal.128

Jackson returned to the ER the next day after he was found wandering in the road in the middle of

the night.129 Again, a physician in the ER evaluated him, noting a regular heartbeat, signs of

agitation, but no other physical symptoms.130 Ultimately, Jackson was felt to have a psychiatric

disorder and was sedated.131 He was later committed involuntarily to the psychiatric ward at a

different facility.132 Before he could be transferred to this facility, Jackson needed to be ‘cleared’

medically.133 The physician duly did so, determining that Jackson did not have a life-threatening

medical condition.134 Once Jackson *24 arrived at the psychiatric facility, his condition quickly

deteriorated, and he was emergently transported by ambulance to another ER where he died

despite resuscitative treatment.135 An autopsy concluded the cause of death was psychotic delirium

caused by tricyclic antidepressant toxicity.136 The court held that while the failure of the physician to

realize the cause of the patient's illness might be the basis for a medical malpractice claim, it was

insufficient to support an EMTALA claim for inappropriate screening.137 The crux of the decision was

that Jackson was evaluated no differently than would other patients presenting under the same

circumstances.138 An incorrect medical diagnosis is not the basis for an EMTALA claim as long as

the screening exam is applied consistently to all patients.139

While there is no EMTALA liability for failure to detect an emergency medical condition, once such a

condition is diagnosed, EMTALA requires that the condition is stabilized before the patient is

discharged.140 In Thomas v. St. Joseph's Healthcare, the appellate court upheld a verdict against the

hospital for violating the EMTALA stabilization provision.141 The victim was a 39-year-old male who

presented to the ER complaining of vomiting and abdominal pain.142 He was treated and released

without any tests or x-rays being performed.143 He returned to the ER several hours later complaining

that he had been vomiting dried blood for several hours.144 This time the physician performed tests

and lab work.145 The patient was discharged with a diagnosis of “acute gastritis, with

hemorrhage.”146 The patient died later that day of purulent peritonitis caused by a perforated

duodenal ulcer.147 Hospital records showed that when the patient was discharged, he was still in

severe pain and had abnormal lab work suggestive of an infection.148 The court felt that the hospital

had failed to meet its stabilization duties under EMTALA despite the fact that the treating physician

had pronounced the patient stable at the time of discharge from the ER.149

*25 C. Disciplinary Action for the Failure to Diagnose

The failure to follow the protocol for patient assessment and treatment in the ER, including taking a

person's vital signs, can result in disciplinary action against a physician. In Moheet v. State Bd. of

Registration for Healing Arts, a male suffering from high blood pressure felt a sudden and severe

headache.150 “When the paramedics arrived, they took [the patient's] history, which included

hypertension and a list of [the patient's] medications, one of which was to treat the hypertension.

They noted that [his] chief complaints were a headache and neck spasms.”151 They took his blood

pressure three separate times with all high readings resulting.152 At the ER, the nurse took his blood

pressure, which was 170/130 and wrote on the form, “Cervical neck pain & [headache].”153 The

patient told the nurse that “[h]e could not hold his head up without pain and could not turn his

head.”154

Dr. Moheet was on duty in the ER and observed that the patient was “holding onto the side rails of

the gurney, clenching his teeth, and going into spasms. When asked why he was in the [ER], [the

patient] responded that he was having neck pain that radiated into the back part of his head.”155 Dr.

Moheet did not order a CAT scan of the head.156 Moheet told the patient of his diagnosis of a C-6

radiculopathy and that he was being discharged with muscle relaxants.157 The patient's wife asked

whether those medications would cause a problem with the patient's blood pressure, and the

physician said they would not.158 Dr. Moheet did not consider this mention of blood pressure to be a

reason to further examine the patient.159 The doctor “did not know [the patient's] blood pressure

when he treated him and did not review the ambulance records or the E[]R[] form.160

The next morning, the patient's wife found him unconscious.161 At the hospital, the patient “had an

abnormal CAT scan, was comatose, and needed emergency neuro-surgical treatment.”162 He was

then diagnosed with a spontaneous intraventricular hemorrhage in the fourth ventricle of his brain.163

*26 The Board's (disciplinary) complaint alleged that, while the patient was in the ER, the “licensee

knew or should have known that [the patient's] blood pressure was very high,” and the “[f]ailure to

ascertain a patient's vital signs, including blood pressure, in the practice of emergency medicine is

below the standard of care.”164 Specifically “the [Administrative Hearing] Commission found Dr.

Moheet ‘grossly negligent’ because he ‘assessed, treated and discharged [the patient] without

knowing his blood pressure’ and because he ‘did not actively seek out the information about the

blood pressure and medical history which might have led him to the correct diagnosis.”’165 In

upholding this finding, the court noted that there was ample evidence in the record to support a

finding of “gross negligence.”166

D. The Failure to Properly Treat Chest Pain

There are multiple illnesses and conditions that cause chest pain, and these are responsible for over

5 million ER visits each year.167Some of these conditions are not related to cardiac ischemia and are

relatively benign, like a strained intercostal muscle or GERD.168Other causes are potentially lethal in

a very short amount of time, such as a myocardial infarction, aortic dissection, and pulmonary

embolism to name a few.169 Needless to say, the failure to properly diagnose and treat chest pain

has been a common source of litigation in an ER setting.

1. Diagnostic Testing

Failure to order appropriate tests to evaluate for cardiac ischemia in a patient with chest pain can

result in liability. In Keogan v. Holy Family Hospital, the defendant physician was found liable for

failing to order an EKG to rule out a heart attack as the source of chest pain in a middle aged

male.170 The patient was a thirty-seven year old male who saw his primary care physician for

complaints of exertional chest pain.171 The physician performed tests, which *27 demonstrated

abnormal cardiac enzymes and an abnormal EKG.172Therefore, the patient was started on a long

lasting nitrate medication.173 The following week, the patient had multiple complaints of chest pain,

collapsed at home, and was taken to the ER by ambulance.174 While in the ER, the patient again

complained of chest pain, this time so severe that he was on his hands and knees.175 The attending

ER physician performed a brief physical examination and took the patient's blood pressure, which

was elevated.176 Crucially, he failed to order an EKG.177 Instead, the physician felt that the patient's

symptoms were merely the result of anxiety and treated him with Valium.178 The Valium, however,

had no effect on the patient's pain.179

The plaintiff was ultimately admitted to the hospital.180 Despite his deteriorating condition, the patient

was merely treated with anti-anxiety medications and Maalox.181 After the patient was in the hospital

for over five hours, he was seen by the admitting physician's partner who then ordered an

EKG.182 The test revealed that the patient sustained death of a substantial portion of his heart

muscle.183His condition worsened, and he died several hours later.184 The Supreme Court of

Washington found that the failure to order an EKG in a patient with chest pain and the symptoms

experienced by the plaintiff was negligent as a matter of law.185 Specifically, the court ruled that the

failure to order an EKG in an attempt to rule out chest pain in a middle aged man rushed to the

hospital by ambulance was negligent as a matter of law where there was uncontroverted medical

evidence that the EKG was medically indicated.186

An ER physician also has a duty to “rule out” possible cardiac causes of chest pain before

discharging a patient home, even if the physician believes the pain is non-cardiac in origin. For

instance, in Broussard v. Medical Protective Company, the patient was a sixty-year old female with

multiple cardiac risk factors, including smoking, a hysterectomy, and a family history for early cardiac

death.187 The facts show that the woman presented to the ER complaining of *28 chest pain, nausea,

vomiting, and diarrhea.188 The ER physician ordered an EKG, which was abnormal and suggestive of

cardiac ischemia.189 He also ordered lab tests and chest x-rays.190 The doctor felt that the source of

her complaints was gastrointestinal in nature, and so he treated her with a “GI cocktail” that eased

her nausea but did not relieve her chest pain.191 He then treated the patient with morphine,

discharged her, and told her to follow up with a cardiologist the following week.192 The plaintiff was

discharged less than four hours after arriving at the ER and was never given aspirin or nitroglycerine

for her chest pain.193 She died an hour after leaving the ER.194 The appellate court found that the ER

doctor violated the appropriate standard of care.195

While Mrs. Broussard presented with symptoms that could be diagnosed as indicative of problems

other than cardiac in nature, the simple fact of this case is that she presented with an abnormal EKG

that indicated possible cardiac ischemia. This fact was known by Dr. Burton, and it was his duty to

rule out this possible life-threatening condition before discharging her.196 It is important to understand

that there is no one single test that is sufficient to “rule out” a heart attack.197 The EKG, chest x-ray,

and cardiac enzyme testing must be considered together. Cardiac enzymes are designed to detect

chemical markers released in the blood in the event of damage to the heart. Unfortunately, these

markers may not appear in the bloodstream for several hours after an episode of cardiac ischemia

significant enough to cause myocardial tissue death. This is why it is important to obtain serial

cardiac enzyme tests spaced several hours apart in order to definitively exclude cardiac injury. Not

only did the ER physician fail to exclude cardiac ischemia in a patient with multiple serious risk

factors for heart disease, he also failed to properly treat the suspected ischemia in the interim period

while awaiting test results or follow up.

Failing to evaluate a patient with atypical chest pain can also result in liability even if the patient

thinks that the pain is not cardiac in origin. In Knuth v. Emergency Care Consultants, the patient

presented to the ER nine times over a four month period.198 She was a forty-four year old woman

who had been in *29 a car accident several months earlier.199 She sustained injuries, including a

cervical strain, but was not hospitalized.200 Rather, she was treated as an outpatient.201 On at least

five of her subsequent ER visits, she complained of “pain/spasms in her neck, chest, and arm

apparently on her left side.”202 The patient believed her symptoms were related to her previous

accident.203 The ER staff never conducted any tests to assess for the possibility that the symptoms

were cardiac in nature.204 In fact, some of the hospital's staff thought that the patient exhibited “drug

seeking” behavior.205 The plaintiff subsequently died of a heart attack after her ninth visit to the ER,

and an autopsy demonstrated that she had suffered two prior heart attacks in addition to the fatal

one.206 The jury found for the plaintiff with evidence showing that the defendant was negligent in

failing to evaluate for a cardiac cause for her symptoms.207 The plaintiff's expert opined that if a

patient presents to the ER with symptoms suggestive of possible cardiac disease, “the duty of that

[ER] physician is to evaluate the patient for [cardiac disease] and to make a reasonable attempt to

rule it out before deciding that it's due to something else.”208

If a physician suspects a non-cardiac etiology for the patient's chest pain, but the symptoms are

suggestive of possible cardiac ischemia, the physician should provide appropriate treatment and

reassess the patient until ischemia is ruled out. In Daves v. Cleary, the patient had suffered a heart

attack ten years earlier.209 He awoke with chest pain that he described as similar to the pain he

experienced with his prior heart attack.210 He presented to the ER with chest pain radiating down his

arms and back, sweating, and he was clutching his chest.211 The plaintiff repeatedly told the

examining physician he was positive he was having a heart attack.212 The doctor, however, told the

patient that the pain was due to gallbladder disease or some other gastrointestinal source.213 The

patient then told the physician that he had his gallbladder removed years earlier, but the doctor

continued to assert that the source of the pain was not cardiac.214

*30 The physician did order cardiac tests, but the EKG did not show any acute changes, and the

initial set of cardiac enzymes was normal.215 The patient continued to have pain despite the

administration of nitroglycerin and anti-anxiety medications.216 Importantly, the physician did not

administer routine medications given to patients with suspected cardiac ischemia, aspirin or oxygen,

nor did he administer clot-dissolving medications. The plaintiff remained in the ER for six hours

before being admitted to the hospital where his primary care physician saw him approximately ten

hours after his initial arrival to the ER.217 At this point, one of the patient's cardiac enzyme tests

showed that he had suffered a massive heart attack.218 The plaintiff ultimately underwent several

heart catheterizations, multiple thoracenteses, and a triple bypass.219 The plaintiff filed a medical

malpractice claim against the ER physician.220 The plaintiff's expert testified that the physician

violated the standard of care for ER physicians in treating a chest pain patient by failing to order

serial EKGs and repeated cardiac enzyme testing to monitor a developing heart attack and

appropriately treat it in time.221 A verdict was returned against the doctor.222

2. Patient Negligence in Refusing Medical Treatment

If the patient refuses to allow the ER personnel to evaluate for chest pain, or he or she leaves the

hospital once the evaluation has begun, then the physician will likely not be found responsible for

subsequent harm. For instance, in Eoff v. Hal and Charlie Peterson Foundation, the patient left the

hospital without receiving treatment for chest pain.223 The facts show that the patient had been to the

ER two earlier times with complaints of chest pain.224 Her evaluation consisted of an EKG, chest x-

rays, and cardiac blood tests, all of which were negative both times.225 She then saw a cardiologist

who found that her EKG during his evaluation revealed ischemic changes.226Nevertheless, the

cardiologist felt the source was a “chest wall injury.”227 She again presented to the ER one day after

her cardiac evaluation with complaints of chest pain.228 While at the hospital, the patient allegedly

had an altercation *31 with the nursing staff who supposedly told the patient that “there isn't anything

we can do except run the same tests that we have run on you before and they are all negative and

until we find something, there's nothing we can do for you.”229

A short time later, the plaintiff left the hospital without receiving treatment.230 She contacted her

primary care physician that afternoon who explained that his office was closed and that she should

go to the ER.231 Her condition worsened, so a few hours later, she went to a different ER and was

promptly diagnosed—the patient was having an evolving heart attack.232 Suit was filed against the

original hospital and ER physician.233 The court found that the patient and her husband were

negligent in failing to exhaust all available alternatives for medical care by voluntarily leaving the

hospital before receiving care, by refusing to follow the advice of her physician to immediately return

to the ER, and by waiting seven additional hours before seeking alternative care.234

In a similar case, a fifty-one year old patient presented to the ER complaining of chest pain.235 He

was appropriately evaluated by a physician, treated with aspirin and nitroglycerin, and had cardiac

testing performed.236 The nitroglycerin substantially relieved the patient's pain but not entirely.237 He

was later given a second nitroglycerin tablet as well as a GI cocktail.238 His cardiac enzyme tests

were not normal, and the patient was advised to stay in the hospital for observation and further

monitoring for possible cardiac ischemia.239 The patient declined and stated he wanted to

leave.240 He apparently unhooked himself from the monitoring equipment and left.241 He died later

that day at his home.242 The subsequent medical malpractice and wrongful death suit was

unsuccessful.243The appeals court confirmed that the physicians had not violated the standard of

care in their treatment of the patient.244

*32 3. Failure to Recommend Admission to the Hospital

A different result was obtained where a physician failed to stress the severity of the situation to a

patient with chest pain. In Roy v. Gupta, the patient was a forty-two year old woman with no prior

history of heart disease.245 She was overweight and did have a history of hypertension for which she

took medications.246 She presented to the ER complaining of chest pain, and the ER physician

performed an EKG, which showed ischemic changes.247 The patient was treated with a transdermal

nitroglycerin patch, monitored briefly, and sent home.248 She returned to the hospital several hours

later complaining of additional chest pain, was admitted, and found to be experiencing a heart

attack.249 She died less than seventy-two hours later.250 The court found the original physician

negligent for failing to hospitalize the plaintiff at the time of the first visit and by failing to inform the

patient of the gravity of the situation involving her heart so that she would agree to

hospitalization.251 The court also held that the failure to admit the patient violated the standard of

care.252

These decisions make it clear that if a patient presents with chest pain, it is the duty of the ER

physician to see the patient in a timely manner and evaluate for life-threatening causes of the pain.

While this testing is occurring, the physician should treat the patient as if the source of the pain is

cardiac; this includes the administration of aspirin, nitroglycerin, and appropriate testing. The

physician also has a duty to perform serial testing if a cardiac source of the pain cannot be

completely ruled out. This usually means serial lab tests and repeat EKGs, which may or may not be

performed in the ER; often, it requires admission to the hospital. Even if the physician suspects a

non-cardiac cause, the safest course is to recommend that the patient undergo a twenty-three hour

observation. The physician may not be liable if the patient chooses to refuse treatment or leaves

before treatment/testing is complete. On the other hand, if the physician fails to recommend

admission for a patient with abnormal findings or fails to impress upon the patient the severity of the

situation so that the patient agrees to be admitted, then there may be liability on the part of the

physician.

*33 E. Injuries Sustained by Visitors to the Emergency Room

The courts are split as to whether a hospital owes a duty to protect non-patient visitors in the ER

from injuries. Obviously, this facility is not a place for the squeamish or faint of heart. Patients often

present for the repair of serious (and bloody) lacerations or else require procedures that most people

consider unpleasant. Family members or friends frequently insist on remaining with their ill or injured

loved ones. In fact, it is common for some of these family members to be overcome by the sights

and smells of the ER and subsequently faint.253 This is especially common when they view

procedures, such as a laceration repair or IV insertion, which involve blood.254 A question, therefore,

arises as to whether the hospital is liable for injuries sustained by these visitors as a result of viewing

procedures or other forms of treatment.255

The majority of courts hold that the hospital is not liable for the injuries sustained by these individuals

because the hospital owes no duty to these non-patients. In Sacks v. Thomas Jefferson Hospital, a

mother brought her young daughter to the ER seeking treatment for a wound on the forehead.256 The

child required stitches to close the wound.257 During the repair, the treating physician asked the

child's mother to hold the patient's head still.258 As the physician sutured the wound, the mother

complained that she felt faint and attempted to leave the treatment room.259 She fainted, fell down

and injured herself.260 The plaintiff argued that the hospital and its agents were liable for the fall

because, by asking her to hold the child's head, they placed the mother in a situation which created

a risk of harm thus creating a duty to protect her from such danger.261 The court was not impressed

with this argument, noting that the mother voluntarily entered the room to watch the suturing of her

daughter.262 Therefore, she accepted the risks of viewing potentially upsetting medical

treatment.263 The court noted that the mother was neither required to be in the treatment room nor

required to hold her daughters head since staff members could have performed that task.264

A Florida court addressed a similar situation in a case of first impression in Ziegler v. Tenet Health

Systems.265 Mrs. Ziegler sustained a cut finger and went *34 to the ER for treatment.266 When her

husband arrived, he placed his arm around her waist and held out his wife's injured hand to steady

it.267 Mrs. Ziegler had amputated part of her finger, and when a physician assistant dressed the

wound, Mr. Ziegler complained of feeling flushed.268 The physician assistant advised the patient to

return to the waiting room, but en route to the waiting room, he fainted and sustained significant

injuries.269 The family filed suit, claiming that the hospital owed a duty to protect him from fainting

once he had been invited to participate in his wife's care.270 The trial court granted summary

judgment for the defendant.271

On appeal, the court addressed the issue of whether the hospital owed Mr. Ziegler a duty.272 After

analyzing similar cases from other jurisdictions, the court held that the hospital did not owe a duty to

a non-patient permitted to accompany an actual patient during the course of ER treatment.273 The

court noted that at no time was Mr. Ziegler under the control of the hospital.274 The court also cited

Zenkina v. Sisters of Providence in Washington, Inc.275 for the proposition that requiring hospitals to

prevent visitors from fainting would essentially require hospitals to bar all visitors from the ER.276

Another court cited public policy as the basis for not finding a duty to prevent injuries to non-patient

family members. In Murillo v. Griffin Hospital, the plaintiff fainted after watching her sister, the

patient, undergo multiple attempts to have an intravenous line inserted.277 The court stated that

foreseeability of the risk of injury was not the pivotal issue.278 Instead, public policy simply did not

favor recognition of a duty to protect a visitor observing a procedure on a patient.279

One jurisdiction, however, has found that, under certain conditions, a duty to prevent harm exists for

non-patients injured in the ER. In O'Hara v. Holy Cross Hospital, the plaintiff brought her eleven year

old son to the ER for repair of a facial laceration.280 Certain facts were disputed, but the parties

agreed that a nurse invited the mother to be in the room with the child where *35 treatment

occurred.281The plaintiff subsequently fainted during the suturing process, falling and striking her

head on the ground.282 The contested facts were whether the mother voluntarily wiped anesthetic

from the child's mouth or whether the treating physician asked her to undertake this task.283 It was

also contested whether the physician asked the mother to wait in the waiting room during the

procedure.284

The Illinois Supreme Court held that a hospital's ER does not have a duty to protect a non-patient

bystander from fainting simply because the bystander is allowed to remain with the patient during the

treatment process.285 However, once the hospital invites the non-patient to participate in the care and

treatment of the patient, then a duty will exist to protect the bystander from fainting.286 The rationale

for this finding is that ER procedures are frequently gruesome, and involving the non-patient in these

actions greatly increases the risk of fainting.287 Since the risk of fainting is much greater, it becomes

reasonably foreseeable in a legal sense.288 Therefore, the hospital owes a duty to protect the non-

patient bystander from this reasonably foreseeable harm that it creates by asking the person to

participate in the care.

III. Conclusion

The ER is a cornerstone of the modern healthcare system. The ER is open twenty-four hours a day,

and due to the EMTALA mandate, the physicians working there must see everyone who presents for

evaluation regardless of their ability to pay for the care. ERs across the country function in the same

underlying manner with regard to patient flow. Upon arrival, each patient is first triaged into one of

three main categories according to the severity of their condition: (1) immediately life-threatening, (2)

acute but not currently life-threatening, or (3) less urgent/non-emergent. This insures that patients

are seen by a physician based on the order of their severity and not simply on the time of arrival.

Urgent care centers are a hybrid between a traditional ER and a primary care physician's office.

These facilities, however, are not subject to EMTALA mandates and are not required to treat any set

group of illnesses or injuries. In fact, they can refuse to treat or evaluate a patient for any reason,

including the inability to pay for the care.

*36 Litigation involving the ER is primarily focused on medical malpractice, and the most common

bases for ER liability include the failure or delay in diagnosis, the failure to obtain appropriate

consults, and the failure to treat. However, these are not the only areas of responsibility. Other

common issues include the liability of hospitals for injuries to third parties in the ER and holding the

health care facility liable for the actions of independent contractors who staff the ER.

It is hoped that this multi-disciplinary presentation has provided the reader with a better

understanding of what really happens in the ER and the common types of litigation involving this

important heath care facility.

Footnotesa1

Samuel D. Hodge, Jr., a skilled litigator, is a professor and chair of the Legal Studies Department at

Temple University where he teaches both law and anatomy. He lectures nationally on anatomy and

trauma and is considered one of the most popular speakers of continuing legal education courses in

the country. He is the co-author of Anatomy for Litigators, ALI-ABA, Second Edition, (2011) and has

written more than 150 articles on medical/legal topics. Professor Hodge is a graduate of Temple

University Beasley School of Law and the Graduate Division of the Law School. He is also a

member of the Pennsylvania Bar Association and the American College of Legal Medicine. See infra

note 2 for a description about Dr. Hadley Hamilton.

1

See SAMUEL D. HODGE, JR. & JACK E. HUBBARD, THE SYSTEMS OF THE BODY - A

MEDICAL - LEGAL GUIDE, ALI-ABA (forthcoming Spring 2012), for a more detailed analysis of this

subject and the relationship of ER medicine to trauma.

2

Interview with Hadley Hamilton, M.D., J.D., Board Certified Emergency Room Physician. Dr.

Hamilton attended medical school at the University of Tennessee Memphis, graduating with an M.D.

degree in 1998. Dr. Hamilton then completed residency training in Emergency Medicine at the

University of Louisville. He obtained his board certification in Emergency Medicine in 2001 and

practiced extensively in Phoenix, Arizona. Dr. Hamilton received his J.D. degree from the Temple

University Beasley School of Law in 2011. While at Temple, he served as an editor and contributor

for the Temple Journal of Science, Technology & Environmental Law. He has also authored and co-

authored several articles concerning the juncture between medicine and the law.

3

About Physician Specialties, AM. BD. OF MEDICAL SPECIALTIES, http://

www.abms.org/Who_We_Help/Consumers/About_Physician_Specialties/emergency.aspx (last

visited Sept. 4, 2010) (The American Board of Medical Specialties defines EM as: “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. The emergency physician 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.”); Who We Are &

What We Do, AM. BD. OF MEDICAL SPECIALTIES,

http://www.abms.org/about_abms/who_we_are.aspx (last visited Oct. 3, 2010) (Emergency Medicine

achieved specialty status in 1979 under the American Board of Medical Specialties).

4

See B. Krishna Reddy & G.V.R.K. Acharyulu, A Study on Emergency Care and Patient Discharge

Process - Application of Network Analysis, 15 J. ACAD. OF HOSP. ADMIN. 001, 001-006 (2003),

available at http:// www.scribd.com/doc/21385072/Patient-Discharge-Process-in-Emergency-

Department (last visited on July 22, 2011), to learn more about the patient discharge process from

the ER.

5

See Hamilton, supra note 2.

6

See Emergency Room Career Options and Education Requirements, EMERGENCY-PORTAL.COM,

http://education-portal.com/emergency_room_career.html (last visited July 12, 2011), for a

discussion of the educational requirements of ER physicians.

7

See H.A. Williamson, R.A. Rosenblatt & L.G. Hart, Physician Staffing of Small Rural Hospital

Emergency Departments: Rapid Change and Escalating Cost, 8 J. RURAL HEALTH 171 (1992), for

a discussion of physician staffing of rural hospital emergency departments.

8

See Hamilton, supra note 2; see also T.M. Fahey, Update on Emergency Department Staffing

Requirements, 10 HOSP. MED. STAFF, 25-29 (1981), for a discussion of the legal responsibilities

related to a hospital's staffing of an emergency medical service.

9

Rasik Sharma, UCSF: The Number of ER Visits Increases by 23%, TOPNEWS UNITED KINGDOM,

http://topnews.co.uk/210896-ucsf-number-er-visits-increases-23 (last visited Sept. 23, 2011).

10

Stephen R. Pitts, et al., National Hospital Ambulatory Medical Care Survey: 2006 Emergency

Department Summary, NAT'L HEALTH STATISTIC REPORTS, PUB. NO. 7, 2 (Aug. 6, 2008),

available at http:// www.cdc.gov/nchs/data/nhsr/nhsr007.pdf.

11

Id.

12

See id., for more information about visits to ER departments in the United States (The National

Hospital Ambulatory Medical Care Survey collects data on visits to emergency and outpatient care

units of non-federal, short stay, and general hospitals in this country); see also Fast Stats, CTRS.

FOR DISEASE CONTROL & PREVENTION, http://www.cdc.gov/nhcs/nhcs.htm, for more

information about National Health Care Surveys.

13

See Hamilton, supra note 2.

14

Richard A. Garibaldi, et al., The Disturbing Decline of Primary Care, PNHP.ORG,

http://www.pnhp.org/news/2005/may/the_disturbing_decli.php (last visited Nov. 6, 2010).

15

See Ellen J. Weber, et al., Are the Uninsured Responsible for the Increase in Emergency

Department Visits in the United States?, 52 ANNALS OF EMERGENCY MED. 108, 108-15 (2008),

for a recent analysis of ER usage shows that the increase is not due so much to uninsured patients

(whose percentage of visits stays constant at about 15% of overall ER visits) but rather by ‘non poor’

persons with insurance who are using the ER to obtain services normally obtained at the primary

physician's office.

16

Study Finds Medical Necessity, Perceived Quality, Convenience and Cost Drive Emergency

Department Visits, ROBERT WOOD JOHNSON FOUND., http://

www.rwjf.org/reports/grr/038688.htm (last visited July 12, 2011) (in one survey, 86.3% of the people

questioned agreed that the ER is the “only place open,” or that “no appointment [is] needed” as the

reasons patients visit this type of facility, consistently across all geographic areas).

17

42 U.S.C. § 1395dd(a) (West 2011).

18

See Hamilton, supra note 2.

19

See Joseph Zibulewsky, The Emergency Medical Treatment and Active Labor Act (EMTALA): What

It Is and What It Means for Physicians, 14 BUMC PROCEEDINGS 339, 339-46 (2001), for a

discussion of the EMTALA, available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1305897/. The

EMTALA has created a wealth of controversy since its enactment, but it is now “considered one of

the most comprehensive laws” insuring “nondiscriminatory access to emergency medical care[.]” Id.

at 339.

20

See Hamilton, supra note 2; see also Kaiser Comm'n, Medicaid and the Uninsured - Emergency

Departments Under Growing Pressure, THE HENRY J. KAISER FAM. FOUND. (Aug. 2009),

available at http:// www.kff.org/uninsured/upload/7960.pdf. The study noted that the recession was

widely viewed as a reason for the increased volume of ER visits through its corrosive impact on

health coverage and individual's ability to afford needed care. Id.

21

Carl Bianco, How Emergency Rooms Work, HOWSTUFFWORKS, http://

howstuffworks.com/emergency-room.htm (last visited Sept. 20, 2011).

22

See Hamilton, supra note 2.

23

Id.

24

See SAMUEL D. HODGE, JR., ANATOMY FOR LITIGATORS 17-35 (2006), for a detailed

explanation of how to read and understand a medical chart.

25

Richard Niska, et al., National Hospital Ambulatory Medical Care Survey: 2007 Emergency

Department Summary, NAT'L HEALTH STATISTICS REPORTS, PUB. NO. 26, 4, 14-15 (Aug. 6,

2010), available at http:// www.cdc.gov/nchs/data/nhsr/nhsr026.pdf.

26

Id. (discussing Table 9).

27

Id.

28

Id.; see S.A. Baum & L.Z. Rubenstein, Old People in the Emergency Room: Age-Related

Differences in Emergency Department Use and Care, 35 J. AM. GERIATRICS SOC'Y 398, 398-404

(1987), for a discussion of the age related differences in people who seek emergency room care. For

instance, people sixty years of age or older do not seem to over utilize the emergency room for

minor complaints. Id. at 402. In fact, they tend to be more acutely ill on presentation than their

younger counterparts. Id. at 403. The older population also stayed longer in the emergency room

than younger individuals if they were eventually sent home but shorter if admitted to the hospital. Id.

at 400. Tests ordered for specific problems varied by patient age with older patients having more

electrocardiograms because of chest pain and fewer urinalyses for abdominal pain than younger

visitors. Id.

29

Pitts, et al., supra note 10.

30

Elizabeth Otto, List of Common Emergency Cases in the Hospital, LIVESTRONG.COM,

http://www.livestrong.com/article/41781-list-common-emergency-cases-hospital/ (last visited Nov. 1,

2011).

31

Falls Among Older Adults: An Overview, CTRS. FOR DISEASE CONTROL AND PREVENTION,

http://www.cdc.gov/HomeandRecreationalSafety/Falls/adultfalls.html (last updated Sept. 16, 2011).

32

Rebecca B. Naumann, et al., Incidence and Total Lifetime Costs of Motor Vehicle-Related Fatal and

Nonfatal Injury by Road User Type, United States, 2005, 11 TRAFFIC INJURY PREVENTION, 353-

60 (2010) (citing Table 1). The total cost for the injuries was approximately 99 billion dollars. Id. at

355.

33

See Hamilton, supra note 2.

34

Bianco, supra note 21.

35

See Ellins v. Dep't of Health, 519 So.2d 850 (La. Ct. App. 1988) (triage “is the area where patients

are traditionally evaluated by the triage nurse and assigned to a section of the hospital.”). Id. at 852.

36

See Hamilton, supra note 2.

37

Id.

38

Id. See also M. Chipman, et al., Triage of Mass Casualties: Concepts for Coping With Mixed

Battlefield Injuries 145(2) MILITARY MED. 99-100 (Feb. 1980); see also Kenneth V. Iserson & John

C. Moskop, Triage in Medicine, Part I: Concept, History, and Types, 49 ANNALS EMERGENCY

MED. 275-81 (2007).

39

See Hamilton, supra note 2.

40

For example, “[t]he emergency department at Vanderbilt University Medical Center established a

program in which patients are quickly assessed in a triage area by a team consisting of a physician,

a nurse, and a paramedic.” Team Triage Reduces Emergency Department Walkouts, Improves

Patient Care, AGENCY FOR HEALTHCARE RESEARCH AND QUALITY-INNOVATIONS

EXCHANGE, http:// www.innovations.ahrq.gov/content.aspx?id=1735 (last visited July 12, 2011).

Those with urgent conditions are quickly brought to a treatment room. Id. Those with “nonurgent

problems are tested and/or treated in the team triage area.” Id. Following this assessment, they are

released or returned to the “waiting area until test results and a treatment room are available.” Id.

41

The median time between checking in at the emergency room and being examined by a doctor was

estimated to be 22 minutes in 1997. Elizabeth Cooney, Emergency Room Wait Times Getting

Longer, WHITE COAT NOTES, (Jan. 15, 2008), available at

http://www.boston.com/news/health/blog/2008/01/all_patients_ ar.html. However, by 2004, the

median wait time rose to 30 minutes. Id. In urban hospitals, the waiting time was 30 minutes as

contrasted with a 15 minute wait in nonurban locations. Id.

42

See Montoya v. John Peter Smith Hosp., 760 S.W.2d 361 (Tex. App. 1988) and Houston v. Phoebe

Putney Memorial Hosp., 673 S.E.2d 54 (Ga. Ct. App. 2009), for examples of malpractice claims

based upon negligent triage.

43

See Hamilton, supra note 2.

44

See, e.g. Health Data Management, Hospital Puts Registration Kiosk in ER (Nov. 19, 2007), http://

www.healthdatamanagement.com/news/registration_emergency25210-1.html. People entering the

emergency room will utilize the kiosk, instead of waiting in line, to describe their symptoms and give

insurance and demographic information. Id. The patients will point to areas on a body diagram

where he or she detects pain and answer questions about their problem and this data will be

transmitted to a nurse to analyze and prioritize the patient's problem based upon medical need. Id.

45

Id.; see also Saint Mary's Health System, What Happens in the ER?, http://www.stmarys.org/er-

whathappens (last visited July 12, 2011). During the registration process, the emergency room

personnel will gather the necessary information to create the patient's chart. Id. Following that

process, the patient will be escorted to an examination room if one is available or the patient may be

returned to the reception area. Id.

46

See Kathleen Brown et. al., Patient and Family-Centered Care for Pediatric Patients in the

Emergency Department, CANADIAN J. EMERGENCY MED. (Jan. 2008), http://www.cjem-

online.ca/sites/default/files/pg38.pdf., for a discussion of the pediatric patient in the emergency room.

47

WKRG News, Emergency Department Assessment, WKRG.COM, http://

www.wkrg.com/story/7231761/emergency-department-assessment (last visited July 12, 2011). Many

ER nurses conduct a head-to-toe assessment, using standard assessment forms, starting with a

primary assessment and then following with a secondary assessment, which includes the “four Ws”:

when, what, who, why and then the how. Shergill, Nursing Assessment: Why Emergency Room

Nurses are Like Detectives, HEALTHMAD, http://healthmad.com/nursing/nursing-assessment-why-

emergency-room-nurses-are-like-detectives/ (last visited July 12, 2011).

48

See HODGE, JR., supra note 24, at 17-31.

49

See Hamilton, supra note 2.

50

Id. See HODGE, JR., supra note 24, at 24-25, for a more detailed discussion of the physical exam.

51

Encyclopedia of Surgery, Electrocardiography, ADVAMEG, INC., http://

www.surgeryencyclopedia.com/Ce-Fi/Electrocardiography.html (last visited July 12, 2011). The test

is a commonly used, noninvasive procedure for recording electrical changes in the heart, showing

the function of the heart, rather than image like an x-ray or CT Scan. Id.

52

Medline Plus, CBC, NAT'L LIBR. OF MED., http://

www.nlm.nih.gov/medlineplus/ency/article/003642.htm (last visited July 12, 2011). The test

measures the number of red blood cells (RBCs), the number of white blood cells (WBCs), the total

amount of hemoglobin in the blood and the fraction of the blood composed of red blood cells or

hematocrit. Id.

53

Univ. of Maryland Med. Ctr., Urinary Tract Infection in Diagnosis,

http://www.umm.edu/patiented/articles/which_tests_will_confirm_diagnosis_of_

urinary_tract_infections_000036_6.htm (last visited Nov. 1, 2011).

54

See SAMUEL D. HODGE, JR. & JACK E. HUBBARD, ANATOMY FOR LITIGATORS 19-33 (2d ed.

2011).

55

See HODGE, JR., supra note 24, at 37-52, for a discussion of diagnostic imaging.

56

See Hamilton, supra note 2.

57

See E. John Gallagher, Acute Abdominal Pain, in EMERGENCY MEDICINE - A COMPREHENSIVE

STUDY GUIDE 497, 501 (Judith Tintinalli, Gabor Kelen & J. Stapczynski eds., 2000) (discussing the

difficulty in establishing the correct diagnosis in abdominal pain using only clinical findings and

routine laboratory tests; a comparison of initial to final diagnosis in a study of abdominal pain

showed the initial diagnostic accuracy to be around 50%).

58

David S. Sanders, et al., A New Insight into Non-Specific Abdominal Pain, 88 ANN. R. COLL.

SURG. ENGLAND 92-94, available at http:// www.ncbi.nlm.nih.gov/pmc/articles/PMC1964054/

(“non-specific abdominal pain is defined as ‘pain for which no immediate cause can be found and

specifically does not require surgical intervention.”’).

59

See Hamilton, supra note 2.

60

This is a hypothetical analogy and not one based upon facts.

61

See generally Hernandez v. Lukefahr, 879 S.W.2d 137 (Tex. App. 1994) (an “admitting physician is

a physician who admits a patient for care in the hospital....”). Id. at 141.

62

See Exercise: Admitting a Patient from the Emergency Department, EPIC SYSTEMS CORP.,

http://onechart.ssfhs.org/images/training/Admitting%20a%C20Patient%C20from%C20the

%C20Emergency%D̈epartment.pdf (last visited July 12, 2011), for an explanation of the thought

process of the doctor admitting a patient to the hospital from the emergency room.

63

See Northeast Ohio Emergency Affiliates v. Ohio State Med. Bd., 637 N.E.2d 376 (1994), for a

discussion of the differences between an admitting physician and a house physician.

64

See Michael Pollick, What is the Difference Between an Emergency Room and an Urgent Care

Center?, WISEGEEK, http://www.wisegeek.com/what-is-the-difference-between-an-emergency-

room-and-an-urgent-care-center.htm (last visited July 12, 2011), for a discussion of the differences

between an urgent care center and an emergency room.

65

Laura Landro, Options Expand for Avoiding Crowded ERs, WALL ST. J. (Aug. 6, 2008),

http://online.wsj.com/article/SB121798121529515219.html.

66

Id. (providing a sample price list and noting that typically emergency room visits cost upwards of

$1000 or more).

67

See About Urgent Care, URGENT CARE ASS'N OF AMER., http://

www.ucaoa.org/home_abouturgentcare.php (last updated Sept. 15, 2011), for a discussion of urgent

care centers (“Urgent care centers provide walk-in, extended hour access for acute illness and injury

care that is either beyond the scope or availability of the typical primary care practice or retail clinic.

There are over 8,500 urgent care centers in the US.”).

68

See http://www.emtala.com (last visited Aug. 8, 2011), for a primer on the Federal Emergency

Medical Treatment and Labor Act. See generally 42 U.S.C. § 1395dd.

69

See David Joseph, Urgent Care Clinics Can Help Busy People Stay On Schedule, AUSTIN BUS. J.

(Apr. 9, 2010), available at http:// austin.bizjournals.com/austin/stories/2010/04/12/focus3.html

(discussing the ability of private urgent care businesses to refuse service based on an inability of the

patient to pay).

70

Critical care refers to the treatment of those who suffer from life-threatening conditions. Frequently

Asked Questions About Critical Care Medicine, SOUTH SHORE ANESTHESIA ASSOCS., http://

www.southshoreanesthesia.com/faq/faq_critical.htm (last visited July 12, 2011). On the other hand,

ER physicians treat individuals who suffer from minor emergencies such as sprained ankles and

broken arms to those with series problems including heart attack, drug overdoses or knife or gunshot

wounds. Id.

71

See Landro, supra note 65.

72

See About the Joint Commission, THE JOINT COMM'N, http:// www.jointcommission.org (last visited

Sept. 23, 2011), for information about the Joint Commission. This organization accredits and certifies

more than 19,000 health care organizations and programs in the United States. Id. Such

accreditation and certification is “recognized nationwide as a symbol of quality that reflects an

organization's commitment to meeting certain performance standards.” Id.

73

See About Urgent Care, supra note 67.

74

See Mandatory Reporting of Infectious Diseases by Clinicians, 39 MORBIDITY AND MORTALITY

WEEKLY REPORTS, (June 22, 1990), available at http://

www.cdc.gov/mmwr/preview/mmwrhtml/00001665.htm (noting that due to a poliomyelitis epidemic in

1917 and the Spanish flu epidemic of 1918, all states have required reporting of certain

communicable diseases since 1925). While a voluntary systematic reporting of diseases began in

1874, Michigan was the first state to require mandatory reporting beginning in 1883. Id.

75

Id. Some state legislatures create statutes that require mandatory reporting, while others create

boards of health or state health departments who then determine which conditions must be reported.

Id.

76

See Hamilton, supra note 2.

77

Malkeet Gupta, Mandatory Reporting Laws and the Emergency Physician, 49 ANNALS

EMERGENCY MED. 369, 371 (2007).

78

Id. at 373. As of 2006, reporting elder abuse was not required in Colorado, Illinois, New Jersey, New

York, North Dakota, Pennsylvania, South Dakota, and Wisconsin. Id.

79

Id.

80

Id. This is significant since “approximately 2.5 million drivers in the [U.S.]” currently have epilepsy

and an additional 180,000 are diagnosed annually. Id. at 369.

81

Id. at 371.

82

Id. at 370.

83

Gupta, supra note 77, at 371.

84

The IRS has singled out ER physicians as a category of doctors who are often listed as independent

contractors by hospitals but, in the view of the IRS, should be characterized as employees. D.

Benson Tesdahl, Are Emergency Room Physicians Always Employees?, CBS INTERACTIVE BUS.

NETWORK, http:// findarticles.com/p/articles/mi_m3257/is_n5_v48/ai_15484885/ (last visited July

12, 2011).

85

Continental Cas. Co. v. Alabama Emergency Room Admin. Servs., P.C., 623 F.Supp.2d 1290, 1297-

98 (M.D. Ala. 2009).

86

Adam Alstott, Hospital Liability for Negligence of Independent Contractor Physicians Under

Principles of Apparent Agency, 25 J. LEGAL MED. 485 (Dec. 2004). See also Boren ex rel. Boren v.

Weeks, 251 S.W.3d 426 (Tenn. 2008); Diggs v. Novant Health, Inc., 628 S.E.2d 851 (N.C. Ct. App.

2007); Simmons v. Tuomey Reg. Med. Ctr., 533 S.E.2d 312 (S.C. 2000); Sword v. NKC Hosps. Inc.,

714 N.E.2d 142 (Ind. 1999); Gilbert v. Sycamore Mun. Hosp., 622 N.E.2d 788 (Ill. 1993);Pamperin v.

Trinity Mem'l. Hosp., 423 N.W.2d 848 (Wis. 1988). While many states have extended liability to

hospitals for the negligence of independent contractors based on apparent agency principles, some

have not. See generally Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945 (Tex.

1998) (deciding not to extend liability under apparent agency). For further discussion of hospital

liability for independent-contractor ER physicians under apparent agency and related theories see

Steven R. Owens, Note, Pamperin v. Trinity Memorial Hospital and the Evolution of Hospital Liability:

Wisconsin Adopts Apparent Agency, 1990 WIS. L. REV. 1129 (1990); Martin C. McWilliams, Jr. &

Hamilton E. Russell, III, Hospital Liability for Torts of Independent Contractor Physicians, 47 S.C. L.

REV. 431 (1996); Elizabeth Isbey, Note, Diggs v. Novant Health, Inc. and the Emergence of Hospital

Liability for Negligent Independent-Contractor Physicians in North Carolina, 43 WAKE FOREST L.

REV. 1127 (2008); Howard Levin, Note, Hospital Vicarious Liability for Negligence By Independent

Contractor Physicians: A New Rule For New Times, 2005 U. ILL. L. REV. 1291 (2005).

87

Osborne v. Adams, 525 S.E.2d 268, 271 (S.C. Ct. App. 1999) (citing Simmons v. Tuomey Reg'l

Med. Ctr., 498 S.E.2d 408 (S.C. Ct. App. 1998)).

88

Id. (citing S.C. CODE ANN. § 613 (1992)).

89

Id. (citing Simmons, 498 S.E.2d at 409).

90

Guadagno v. Lifemark Hosps. of Florida, 972 So.2d 214, 216 (Fla. Dist. Ct. App., 2007).

91

Id. at 216-17.

92

Id. at 217.

93

Id.

94

Id.

95

Id.

96

Guadango, 972 So.2d at 216.

97

Id.

98

Id. (quoting Roessler v. Novak, 858 So.2d 1158, 1162 (Fla. 2d DCA 2003)).

99

Id. (internal citations omitted); see also Wilkins v. Marshalltown Med. & Surgical Ctr., 758 N.W.2d

232, 236-37 (Iowa 2008);Spiegelman v. Victory Mem'l. Hosp., 911 N.E.2d 1022, 1030-31, 35-36 (Ill.

App. Ct. 2009).

100

40 PA. STAT. ANN. § 1303.516 (West 2002).

101

ALASKA STAT. ANN. § 09.65.096 (West 2011).

102

Id.

103

Id.

104

For a discussion of patient dumping issues, see Karen I. Treiger, Preventing Patient Dumping:

Sharpening the COBRA's Fangs, 61 N.Y.U. L. REV. 1186, 1190 (1986).

105

Tenet Hosps. Ltd. v. Boada, 304 S.W.3d 528, 533 (Tex. App. 2009), reh'g denied (Jan. 27, 2010),

review denied (June 18, 2010); see also Power v. Arlington Hosp. Ass'n, 42 F.3d 851, 856 (4th Cir.

1994).

106

Tenet Hosps, 304 S.W.3d at 533 (citing Root v. Liberty Emergency Physician, Inc., 68 F.Supp.2d

1086, 1091 (W.D. Mo. 1999)).

107

Id. (citing 42 U.S.C. § 1395dd(a)-(c) (2006)).

108

Id. (quoting Casey v. Amarillo Hosp. Dist., 947 S.W.2d 301, 304 (Tex. App. 1997)).

109

Correa v. Hosp. San Francisco, 69 F.3d 1184, 1192 (1st Cir. 1995).

110

Id.

111

Id. See also Jackson v. East Bay Hosp., 246 F.3d 1248, 1255 (9th Cir. 2001) (“The statutory

language of the EMTALA clearly declines to impose on hospitals a national standard of care in

screening patients [i]nstead, the ‘touchstone is whether the procedure is designed to identify an

‘emergency medical condition,’ that is manifested by ‘acute’ and ‘severe’ symptoms.”' (internal

citations omitted)).

112

Feighery v. York Hosp., 59 F.Supp.2d 96 (D. Me. 1999) (EMTALA does not require the hospital “to

provide a uniform minimum level of care to each patient seeking emergency care,” nor does it allow

for a private cause of action for malpractice). Id. at 102.

113

Correa, 69 F.3d at 1188.

114

Id. at 1188-89.

115

Id. at 1189.

116

Id.

117

Id. at 1193.

118

Id.

119

Correa, 69 F.3d at 1193.

120

Jackson, 246 F.3d at 1252-53.

121

Id. at 1252.

122

Id.

123

Id.

124

Id.

125

Id.

126

Jackson, 246 F.3d at 1252.

127

Id.

128

Id.

129

Id. at 1253.

130

Id.

131

Id.

132

Jackson, 246 F.3d at 1253.

133

Id.

134

Id.

135

Id.

136

Id.

137

Id. at 1256.

138

Jackson, 246 F.3d at 1256.

139

Id.

140

Thomas v. St. Joseph Healthcare, Inc., 335 S.W.3d 460, 466 (Ky. Ct. App. 2010); see generally 42

U.S.C. § 1395dd.

141

Id. at 467.

142

Id. at 461.

143

Id.

144

Id.

145

Id.

146

Thomas, 335 S.W.3d at 466.

147

Id. at 461.

148

Id. at 467. (The victim had a highly elevated white count, above normal respirations, below normal

red-cell count, and below normal urine output).

149

Id.

150

Moheet v. State Bd. of Registration for Healing Arts, 154 S.W.3d 393, 395 (Mo. Ct. App., 2004).

151

Id.

152

Id.

153

Id.

154

Id.

155

Id.

156

Moheet, 154 S.W.3d at 396.

157

Id.

158

Id.

159

Id.

160

Id.

161

Id.

162

Moheet, 154 S.W.3d at 396.

163

Id.

164

Id. at 398.

165

Id. at 399.

166

Id.

167

Gary B. Green, Peter M. Hill, Approach to Chest Pain and Possible Myocardial Ischemia, in

EMERGENCY MEDICINE - A COMPREHENSIVE STUDY GUIDE, 341 (Judith Tintinalli, Gabor

Kelen & J. Stapczynski eds., 2000).

168

See Hamilton, supra note 2; see also Martin Hughes, Signs of a Pulled Muscle in the Chest,

LIVESTRONG.COM, http:// www.livestrong.com/article/164824-signs-of-a-pulled-muscle-in-the-

chest/ (last visited Nov. 1, 2011); Intercostal Muscle Strain, BODY MOTION, http://www.body-

motion.co.uk/injuries/intercostal-muscle-strain-treatment.htm (last visited Nov. 1, 2011).

169

For a discussion of the causes of chest pain, see Chest Pain, MEDICINENET.COM (July 12, 2011),

http://www.medicinenet.com/chest_ pain/article.htm.

170

Keogan v. Holy Family Hosp., 622 P.2d 1246 (Wash. 1980).

171

Id. at 1249.

172

Id.

173

Id.

174

Id. at 1250.

175

Id.

176

Keogan, 622 P.2d at 1250.

177

Id.

178

Id.

179

Id.

180

Id.

181

Id.

182

Keogan, 622 P.2d at 1250.

183

Id.

184

Id.

185

Id. at 1260.

186

Id.

187

Broussard v. Med. Protective Co., 952 So.2d 813, 815 (La. Ct. App. 2007).

188

Id.

189

Id. at 816. (The EKG showed “Normal sinus rhythm [;] T wave abnormality, consider lateral ischemia

[;] Abnormal ECG.”). Id.

190

Id. at 815.

191

Id. at 816.

192

Id.

193

Broussard, 952 So.2d at 816.

194

Id.

195

Id. at 818.

196

Id. at 817.

197

See Hamilton supra note 2.

198

Knuth v. Emergency Care Consultants, 644 N.W.2d 106, 109 (Minn. Ct. App. 2002).

199

Id. at 108-09.

200

Id. at 109.

201

Id.

202

Id.

203

Id.

204

Knuth, 644 N.W.2d at 109.

205

Id.

206

Id.

207

Id. at 110.

208

Id. at 109.

209

Daves v. Cleary, 584 S.E.2d 423, 425 (S.C. Ct. App. 2003).

210

Id.

211

Id.

212

Id.

213

Id.

214

Id.

215

Daves, 584 S.E.2d at 425.

216

Id.

217

Id.

218

Id.

219

Id.

220

Id. at 425-26 (The jury awarded $500,000 and the appellate court affirmed).

221

Daves, 584 S.E.2d at 426.

222

Id.

223

Eoff v. Hal and Charlie Peterson Found., 811 S.W.2d 187, 190 (Tex. App. 1991).

224

Id.

225

Id.

226

Id.

227

Id.

228

Id.

229

Eoff, 811 S.W.2d at 190.

230

Id.

231

Id.

232

Id.

233

Id. at 190-91.

234

Id. at 191.

235

Hampton v. Saint Michael Hosp., No. 81009, 2003 WL 1848772, at *1 (Ohio Ct. App. 2003).

236

Id.

237

Id.

238

Id.

239

Id. at *2.

240

Id.

241

Hampton, 2003 WL 1848772, at *2.

242

Id.

243

Id. at *4.

244

Id.

245

Roy v. Gupta, 606 So.2d 940, 942 (La. Ct. App. 1992).

246

Id.

247

Id. (Ischemic changes suggest that the heart muscle is not receiving enough oxygen).

248

Id.

249

Id.

250

Id.

251

Roy, 606 So. 2d at 942. (The trial court also found that had Mrs. Roy been hospitalized on her initial

visit then her chances of survival would have increased greatly).

252

Id. at 943.

253

See Hamilton, supra note 2.

254

Id.

255

Id.

256

Sacks v. Thomas Jefferson Hosp., 684 F.Supp. 858, 858-59 (E.D. Pa. 1988).

257

Id. at 859.

258

Id.

259

Id.

260

Id.

261

Id.

262

Sacks, 684 F.Supp. at 859.

263

Id.

264

Id.

265

Ziegler v. Tenet Health Sys., 956 So.2d 551 (Fla. Dist. Ct. App. 2007).

266

Id. at 553.

267

Id. at 552.

268

Id. at 553.

269

Id.

270

Id.

271

Ziegler, 956 So.2d at 553.

272

Id.

273

Id. at 556.

274

Id. at 555.

275

Zenkina v. Sisters of Providence in Wash., Inc. 922 P.2d 171 (Wash. Ct. App. 1996).

276

Ziegler, 956 So.2d at 556.

277

Murillo v. Griffin Hosp., No. CV000071919S, 2001 WL 1283575, at *1 (Conn. Super. Ct. Oct. 11,

2001) aff'd, Murillo v. Seymour Ambulance Ass'n, Inc., 823 A.2d 1202 (Conn. 2003).

278

Id. at *4.

279

Id.

280

O'Hara v. Holy Cross Hosp., 561 N.E.2d 18, 19 (Ill. 1990).

281

Id.

282

Id.

283

Id.

284

Id. at 22.

285

Id. at 21-22 (holding that the risk of fainting was minimal and therefore not reasonably foreseeable in

a legal sense).

286

O'Hara, 561 N.E.2d at 22.

287

Id.

288

Id.