In Maryland, virtually every major hospital except for Baltimore-Washington Medical Center (which has a "non-profit" ER) contracts their emergency room department to third party emergency room doctors. What does this mean? It means that when you go to the emergency room, the doctors are generally not employees of that hospital. Instead, they are independent contractors. This is often made clear, in writing, to the patient. But really, who is paying attention to these nuances when you need emergency care?
Most states hold hospitals responsible for the mistakes of emergency room physicians whether they are independent contractors or employees. The rationale is a good one: the patient knows nothing of the secret limitations on liability in the contract between the hospital and the ER physicians. You go to a hospital assuming the hospital is going to provide care and treatment for your problem.
Maryland courts are going to hold that if it is not made clear to the patient that an independent contractor is providing the emergency services, the hospital will be responsible. Maryland has adopted the 2nd Restatement of Agency §267, which states:
One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care and skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.
There are a few Maryland cases where the ER doctors did not make clear that they were independent contractors. So even if an ER services contract with the hospital specifically states that the doctors are independent contractors, that will only be the beginning of the analysis.
But, unlike many other states, Maryland law will not find the hospital responsible if the evidence is that the patient knew that the emergency room physician was not an agent of the hospital.
Why does any of this matter? There are two big reasons why this battle matters. First, it is a deep pocket issue. Many of the emergency department practices do not have a great deal of insurance coverage. Second, it is always a little bit easier to point to a faceless hospital than the doctors themselves.Fighting this Battle in Discovery
Ultimately, the question of apparent agency is a jury question that will be vigorously contested in discovery. This means the battle is going be be very fact intensive. Accordingly, you should expect an interrogatory like this from defense counsel:
Do you contend that any Defendant is the agent of any other Defendant or party? If so, set forth all facts to support your contention that there is (1) an agency relationship, whether actual, apparent or implied; and (2) that Defendant, as the agent of any other Defendant, did within the scope of his or her duties, cause or contribute to any injury or harm suffered by any plaintiff.
You need to have a good answer to this question. The good news is that juries appreciate the real world realities. They understand that in an emergency, you are choosing a hospital based on the reputation or your past experiences with the facility, and not back room deals that get cut regarding who gets the ER contract. They will put themselves in the victim's shoes. But jurors are also going to follow Maryland law even if it is unjust. So you have to give them facts that make an apparent agency argument stick.Other Theories of Responsibility
Keep in mind there are other theories to keep the hospital in the case for the conduct of its emergency room staff. First, the hospital may be responsible on a pure master-servant/respondeat superior theory if its employees - which is usually everyone but the physicians - negligently causes injury to a patient. The second is when the hospital fails to review and supervise medical care administered to the patient. As previously indicated, over 20 jurisdictions have now adopted this latter theory of liability.
You can also take a crack at breaking down the independent contractor relationship to see if they really do meet the definition of an independent contractor. So these relationships are employee-employer and are set up as independent contractors for tax or liability purposes.
There are other more creative arguments that are more fact intensive, such as improper staffing or credentials of the doctors or other health care providers, the failure to promptly admit the patient, and other non-delegable duties the hospital may have.Classic ER Malpractice Cases
- spinal epidural abscess
- volvulus (twisted bowls)
- aortic dissection
- abdominal aortic aneurysms
- testicular torsion
- medication errors
- surgical errors
- 2014, Maryland: $5,200,000 Verdict: Our client, a security guard, is working at the federal building in Baltimore. As he walks across a security gate, a co-worker accidentally engages the gate, causing it to violently strike his leg. He goes to the St. Agnes Hospital ER, where he receives an x-ray. Doctors note that the knee and leg are not fractured or dislocated and discharge the security guard after around 2 hours in the ER. Over the next few days, the man’s leg begins to swell, prompting him to see his physician. When they cannot detect a pulse in the leg, he goes back to St. Agnes, where doctors note that all the ligaments in his leg are shredded. Although they attempt to operate on the leg, the operation is ultimately unsuccessful, requiring amputation above the knee. The man sues the ER doctors, who allege that they could not have possibly known that the injury was vascular. The plaintiff claims, however, that if they would have detected the injury earlier, his leg would have been saved. The case goes to trial in Baltimore City, where a jury awards for the plaintiff.
- 2014, Pennsylvania: $7,000,000 Settlement: Over the course of 10 days, an 8 month-old girl goes to the ER three times with flu-like symptoms. On each occasion, doctors diagnose the girl with an ear infection or an upper respiratory infection, prescribing antibiotics and fever reducers. After the three initial trips, the girl goes back to the ER, where doctors diagnose her with sepsis. She is transferred to a children’s hospital where she is forced to remain for around three months. The severe sepsis leads to meningitis, cortical blindness, cerebral palsy, and neurological dysfunction. The girl’s parents sue the ER doctors, claiming that they failed to recognize the symptoms of sepsis and bacteremia and should have admitted the girl. Before trial, the parties settle the claim for $7,000,000.
- 2014, Virginia: $2,000,000 Verdict: A 53 year-old man presents to the ER with chest pain. An ER doctor evaluates him and administers a cardiac enzyme test. The man is told that he can leave the hospital before his tests come back, but they ultimately reveal that he is having a cardiac issue. He returns to the hospital 48 hours later and requests that the records be sent to his physician. The records are never sent though. The man returns to the ER on two more occasions, when a subsequent evaluation reveals a serious occlusion and myocardial infarction. He has to be airlifted to Duke Hospital after this diagnosis. He sues the ER doctors, claiming that they should not have released him before his initial enzyme test came back. However, doctors claim that he actually eloped from the hospital without being formally told that he could leave. The case went to trial, and a jury finds the ER doctor was negligent, awarding the man $2,000,000.
- 2014, Massachusetts: $900,000 Settlement: A 31 year-old woman presents to the ER complaining of fever, abdominal pain, and nausea. Doctors make a differential diagnosis of diverticular disease of the colon, a urinary tract infection, and colitis. A CT scan shows diverticular disease of the colon, prompting the ER doctor to rule out diverticulitis. After a second CT scan, the patient is discharged without any surgical consultation, however she dies one week later. Her autopsy reveals a rupture of her diverticulum, which is ultimately determined to be the cause of death. Her estate sues the ER doctors for not properly diagnosing diverticulitis. Before trial, the parties settle for $900,000.
- 2014, Ohio: $3,446,032 Verdict: An ambulance transports and 84 year-old woman to the ER after a car accident. She complains of lower back pain, so ER doctors perform X-rays and release the woman with pain medication. The following day, she experiences paralysis in both legs, with even more back pain. After going back to the ER, doctors diagnose her with a spinal injury and a distended bladder. The woman sues the ER doctors, claiming that they misread the initial X-ray, which led to the permanent spinal cord injury. The defendants contend that the injury would have occurred regardless of whether the X-ray was properly read and that their course of action would have been fairly limited if they would have discovered the condition. The case goes to a jury, who finds for the plaintiffs in the amount of $2,246,032.
- 2014, New York: $835,000 Settlement: A 42 year-old woman presents to the ER with shortness of breath and cough. Doctors perform a chest x-ray, which reveals a pulmonary infiltrate. Doctors believe this to be pneumonia and discharge the patient with antibiotics. Two weeks later, the patient undergoes a hysterectomy, but passes away shortly after the surgery. The cause of death is revealed to be a pulmonary embolism originating from deep vein thrombosis in her legs. Her estate sues the ER doctors, claiming that they should have performed a CT scan considering that she had symptoms of a pulmonary embolism at her initial visit. They contend that doctors would have been able to discover the issue at the time of her visit, thus preventing the hysterectomy from going forward. The doctors contend that the symptoms were consistent with pneumonia, and their diagnosis was appropriate. Prior to trial, the case settles for $835,000.
Getting a Lawyer for Your Malpractice Claim
If you have been the victim of medical negligence or you believe you may have a wrongful death claim for the loss of a loved one, contact us at 1.800.553.8082, or get a online free consultation.More Information on Emergency Room Malpractice Claims in Maryland
- Sample videotaped deposition of a physician's assistant in an ER malpractice case
- More Information (free consultation with an attorney at 800-553-8082 or get a free Internet medical malpractice consultation)