The first question Michael M. Wilson, MD, JD, asks potential clients is: “What serious, permanent injury did you suffer?”

“This question eliminates about 95% of all calls about ED malpractice,” says Wilson, a Washington, DC-based healthcare attorney.

Many callers start off by complaining about how they were stuck in an ED waiting room for many hours. That does not equate to malpractice. The claims evaluation process for ED claims is somewhat more complex than other settings, since many patients see specialists after the ED visit. “It is simply not possible to provide ultimate definitive care in an ED setting to every patient presenting with a new and frequently unique constellation of medical issues,” Wilson explains.

For example, if a patient reports falling on an outstretched hand, the ED may take plain film X-rays and miss a hand fracture. Later, a hand specialist diagnoses the fracture with the aid of hand film X-rays in additional positions. “The ED treatment is by an ED generalist in a limited period of time, determined to triage the patient and to direct that patient to appropriate further care with subspecialists,” Wilson says.

Complainants are angry the ED provider misdiagnosed them and they want to sue for malpractice. “The patients frequently bring complex medical and surgical problems and do not appreciate the difference between ED care and subspecialty care,” Wilson observes.

From the first contact, lawyers and staff are weighing which cases to reject outright and which are worth investigating further. To make the first cut, the claim must be associated with serious, permanent injuries (e.g., hemiplegia, paraplegia, total blindness, amputation of limbs, or permanent brain damage). Of that group, only some cases merit further investigation. Cases in which causation is impossible to prove are rejected. “Assuming that the decision is made to investigate the case, the first expense is to obtain the medical record and X-rays, if taken,” Wilson says.

Usually, patients can learn some information from the patient portal. The lawyer reviews those records, sometimes with the help of an in-house expert. “These actions involve a time expense, which can be significant,” Wilson says.

An outside expert reviews every case the firm decides to take. “These would be cases in an attractive venue, with catastrophic damages and probable malpractice,” Wilson says. An example would be a relatively young patient who was kept waiting in the ED with an occlusive stroke until it was too late to pursue tPA treatment, leaving the patient hemiplegic.

About 5% of initial inquiries undergo an expert review. Experts usually charge about $500 per hour, with most records reviewed within two hours, at least for a preliminary review. Of that 5%, the firm conducts further investigation on 75%. “About half of those cases then proceed on to settlement or trial,” Wilson reports. “Each law firm’s numbers will vary, of course.”

Some strong cases end up rejected after the expert review because of insufficient damages. “Our current threshold is that we do not take on a new case unless the expected settlement exceeds $500,000,” Wilson says.

Attorneys provide other options if a case is rejected. Complainants are encouraged to go to other firms, to file a complaint with the state bar association or state medical board, seek advice from law school legal aid clinics, or go to small claims court. Wilson emphasizes his is just one firm; each practice decides which cases to pursue. It is common for one firm to take a case that others turned down. Sometimes, their case has probable merit, but there is a conflict of interest because the likely defendant is one of the law firm’s experts in another medical malpractice case.

“Just because we turn a case down does not mean that they do not have a viable medical malpractice case,” Wilson emphasizes.