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In most communities, especially large urban areas, emergency rooms have become walk-in clinics. With the increasing difficulty of finding general practitioners with open practices and the transience of the population, most poor and many middle-income families have no family doctor. When these people need medical care, they go to an emergency room. This has caused urban emergency rooms to become crowded with persons who do not need emergency care. Because of the crowded conditions, the nonemergency patients may have to wait hours to be treated. Thus, in large emergency rooms, the staff must make decisions not only on whether to treat a patient, but also on the priority of treatment among the patients. The emergency room's liability for a mistake in recognizing the severity of a patient's injuries will depend upon what notice its personnel had of the injuries. This notice may come from the patient's appearance, a physician phone call, or a report from an emergency medical service (EMS) technician.

The emergency room personnel must take special precautions is evaluating patients who are sent to the facility by a physician. If a physician determines that the patient needs emergency care, the patient must be evaluated at once to determine the severity of the problem. The patient must be seen by a physician, not by the nursing staff. The legal problem is that the referring physician's diagnosis creates a presumption that the patient needs care. Only another physician may rebut that presumption.

If a nurse turns the patient away or causes the patient to suffer undue delay in obtaining care, the facility will be liable for any additional injuries suffered by the patient. This liability results from the legal incapacity of a nurse to exercise independent medical judgment. As noted in the chapter on hospital liability, the facility will be liable if nurses exceed their legally allowed professional discretion.

The emergency room physician may, in an independent evaluation of the patient's condition, legally disagree with the referring physician's diagnosis. If the emergency room physician mistakenly disregards the referring physician's diagnosis, this will constitute negligence only if the patient can prove that the decision was unreasonable, given the patient's physical condition. If the patient's examination is normal, the mistaken diagnosis may not be negligent, despite the referring physicians diagnosis. The normal exam must be fully documented, however, because the injury will examine it with the hindsight knowledge that the referring physician was correct after all.

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