Two surprising differences between hospital & strip mall emergency rooms
Our medical malpractice lawyers understand how the law is different for hospital and freestanding ERs
Over the past decade, most Texans have probably noticed small emergency centers popping up at strip centers all over the place. These facilities are not a part of any hospital, but rather are independent, freestanding emergency rooms.
In the Houston area, the freestanding emergency room companies include Neighbors Emergency Center, Texas Emergency Care Center, First Choice Emergency Room, Life Savers 24 Hour Emergency Room, Memorial Emergency Center, Altus Emergency Centers, Cypress Creek ER, Elite Care Emergency Room, and Sublime Care Emergency Room.
Both freestanding and hospital-based emergency rooms have 24/7 physician staffing. However, in a recent case that I handled against a Neighbors Emergency Center facility, I was surprised to learn that the doctor on duty trained in internal medicine and pediatrics, but was not a board certified emergency physician. Both types of facilities typically have quick access to have lab work or radiology studies, like x-rays, CT scans, or MRI scans, done.
As a Texas medical malpractice attorney, I have represented many clients who have received care in hospital emergency rooms, as well as freestanding emergency centers. Through my experience in handling those cases, I noticed some differences in the two types of emergency rooms.
Difference in available specialty care
People go to emergency rooms with all kinds of different problems. Some things, like broken bones, can be initially treated by an emergency doctor, whether in a freestanding or hospital ER.
Other medical problems are different. An expert emergency physician that Painter Law Firm retained to review some cases once told me that ER doctors spend the majority of their time figuring out which type of specialty doctor their patients need to see. This is a big difference between hospital-based emergency rooms and freestanding ERs.
If you go to a hospital emergency room, the ER doctor has specialists available to see you in the hospital. The same is not generally true at freestanding emergency rooms—you would instead be told to go to a hospital. This brings to examples to mind.
I recently represented a person who went to a Neighbors Emergency Center in the Houston area with testicular torsion. He ended up going to Texas Children’s Hospital, where he was seen by a urologist.
Another client of mine went to Texas Emergency Care Center for treatment of a severe headache. The next night, he went to the emergency room at Memorial Hermann Northeast Hospital, and was seen by a neurologist.
If you have an emergency medical condition that you think may require a specialist, you should consider going to a hospital-based ER. If not, you may find a freestanding emergency room to be equally appropriate.
Different legal standard for emergency room medical malpractice: hospital ERs
As a part of the so-called tort reform legislation that became law in 2003, Texas has a dramatically higher standard of proof for emergency medical care that occurs in emergency rooms that are part of a hospital.
In all other types of medical malpractice cases, the patient, or family members bringing a wrongful death suit, must prove that the doctor or hospital was negligent. Simply put, negligence means that a nurse, surgeon, or doctor made a mistake that did not meet the accepted standard of care and caused harm or death.
There is a big difference when it comes to emergency medical care in a hospital emergency room. For these cases, the standard is wilful and wanton negligence. The Texas Supreme Court has held that wilful and wanton negligence is equivalent to gross negligence.
Under Texas law, wilful and wanton negligence is a tough standard to prove, requiring a plaintiff to show: (1) objectively, the health care provider’s conduct involved an extreme degree of risk, considering the probability and magnitude of potential harm to others; and (2) subjectively, the provider had actual awareness of the risk involved, but proceeded anyway with conscious indifference to the rights, safety, or welfare of others.
Different legal standard for emergency room medical malpractice: freestanding ERs
The statute that defines the higher standard of proof for hospital-based emergency rooms says nothing about freestanding emergency centers. In fact, it specifically references facilities that are located in a hospital. Therefore, the normal, lower standard of negligence should apply to emergency medical malpractice arising from emergency rooms that are not part of a hospital.
That is exactly what the Dallas Court of Appeals decided in a 2013 case called Gardner v. Children’s Medical Center of Dallas.
Our attorneys are here to help
If you or someone you care about has been injured in any type of emergency room, call 281-580-8800 for a free consultation with our Houston-based medical malpractice lawyers. We have experience in handling emergency room cases in Texas and are focused on results.
Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.
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On 4/1/2018, the new law will end the current practice where doctors can secretly enter a DNR order against patient and family wishes [...]read more
A physician has to supervise the care and prescriptions of nurse practitioners and physician assistants under written, signed agreements
On 4/1/2018, the new law will end the current practice where doctors can secretly enter a DNR order against patient and family wishes
This article was originally published in the September/October 2017 edition of "The Houston Lawyer" magazine
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