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Medical malpractice lawsuits and medicolegal issues are a major concern for physicians and health care institutions. Most physicians expect to become involved in some manner in litigation alleging physician negligence. There are nearly 125,000 active lawsuits in the United States alleging physician malpractice on any given day. To put this number in perspective, consider that there are only 69,000 students currently enrolled in US medical schools. The physician named in a suit, however, may not always be a target defendant. In some circumstances, physicians who have provided treatment to a patient suing another physician may be subpoenaed to testify in court. Physicians may also become involved in litigation by agreeing to present medical opinion.

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The filing of a malpractice action is likely to generate a great deal of emotional stress for the defendant physician. This chapter discusses medicolegal problem areas in the emergency department (ED) and suggests ways in which the emergency medicine physician can avoid malpractice litigation.

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The true extent of the ED malpractice problem is unknown, partly because EDs and emergency physicians are insured by many different insurance companies that have not pooled their claim information and partly because many claims involve events that occurred not only in the ED but also in other parts of the hospital. It is clear, however, that disputes have increased attention to risk management; the number of ED malpractice claims and the size of malpractice judgments are increasing.

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The net effect of malpractice suits has been to make emergency physicians, like physicians in general, practice so-called defensive medicine. Modern EDs provide mainly episodic care in a high-pressure environment that affords little time for leisurely contemplation and consultation when the diagnosis or best course of treatment is in doubt. In addition, prompt follow-up or consultation is often impossible to provide. These conditions mandate obtaining more supportive laboratory or radiographic studies than might be obtained otherwise (defensive medicine).

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This chapter is intended to provide the practitioner with an overview of relevant medicolegal aspects of emergency medicine. The outcome of a particular malpractice case depends on its particular facts. Furthermore, both statutory and case law may vary considerably in different jurisdictions. For all these reasons, this chapter is not offered as legal advice.

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Criminal versus Civil Law

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There are two major types of law in the United States: criminal and civil. In a criminal lawsuit, the state or federal government sues an individual for actions considered to be against public interest, such as theft, murder, or rape. Such suits are intended to protect the public by apprehending and punishing the offender in a particular case and by deterring others from similar harmful conduct. Punishments range from fines to incarceration or even death in some jurisdictions. Given the relative severity of the punishment, the prosecution must prove its case beyond a reasonable doubt, a heavier evidentiary burden than in civil cases.

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