Patients with claims arising from treatment in a Utah emergency department (ED) will have a harder time making their cases in the wake of a new state law. The state legislature has raised the standard of proof from the traditional “preponderance of the evidence” to the higher “clear and convincing evidence” model.

The new law applies to any physician who treats patients in an ED, not just emergency or trauma staff members. “We wanted to encourage all specialty coverage in the EDs,” says Mark Fotheringham, vice president of communications for the Utah Medical Association (UMA), which lobbied hard for the change.

The law applies to all clinicians, including nurse practitioners and physician assistants, who provide emergency care.

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“With this higher standard to prove a malpractice claim, we hope to encourage more specialists to return to taking ED calls,” said UMA President Cris Cowley, MD.

“This won’t immunize doctors in the ED from responsibility to a negligently injured patient,” he added, “but we feel this will discourage those ‘one call, that’s all’ nuisance claims that are filed by those who are looking to win the liability lottery.”

The law recognizes that patients and their companions in emergency situations often deal with clinicians who do not know them and that they may not be able to give complete medical histories. As a result, clinicians may start treatment without knowledge of allergies, current medications, comorbid conditions, or access to medical records.

The new standard will be in force until the patient is discharged or stabilized and transferred from the ED. It will not apply when doctors have a pre-existing relationship with the patient, have seen the patient for the same condition within three months, and have immediate access to the relevant patient records.