Strange and Schafermeyer's Pediatric Emergency Medicine, Fourth Edition (Strange, Pediatric Emergency Medicine), 4th Ed.

CHAPTER 150. Medicolegal Considerations

Steven M. Selbst

HIGH-YIELD FACTS

• The Emergency Medical Treatment and Labor Act (EMTALA) mandates a screening examination for all patients presenting to an ED—this essentially obviates the need for consent in a minor unaccompanied by a parent or guardian.

• The Health Insurance Portability and Accountability Act (HIPAA) mandates that all possible care be taken to ensure the confidentiality of a patient’s medical records.

• Many states have “emancipated minor” statutes that permit adolescents to make their own healthcare decisions.

• When refusal of care becomes an issue, the “best interest” of the minor is the priority.

• Disclosure of medical errors is becoming increasingly common and in the near future may become the law in many states.

INTRODUCTION

Legal issues are particularly important in the ED. The rights of the patient, the physician, the hospital, and the public are intertwined in complex relationships.1 Children have unique and sometimes complicated medical conditions. Issues of consent for minors and adolescents, and problems such as child abuse or neglect, pose difficult medical and legal questions. Physicians and others who care for acutely ill and injured children must be aware of relevant laws to manage young patients. They must also recognize the diagnoses that pose the highest risk for litigation when caring for children.24

MEDICAL MALPRACTICE AND THE ED

A recent study showed that about 7.5% of emergency physicians (EPs) are sued annually.5 EPs are at special risk because they must rapidly deliver complex care to patients with high acuity illness.6 EPs rarely have an ongoing relationship with their patients. They must quickly attempt to obtain a history, perform a physical examination, make a diagnosis, and institute therapy. Patient handoffs and communication breakdowns may contribute to errors and malpractice lawsuits.7,8 Overcrowding also adds legal risk to the ED environment.9,10 Trainees who are not properly supervised in the ED may contribute to medical errors and malpractice.8 Privacy may be limited in the ED, and overworked staff could be impolite at times. Patients may view their encounter with the physician as impersonal if the busy clinician hurries off to see another patient. Patients often become frustrated by long waiting times.11

Most malpractice lawsuits result in settlements out of court, and some are dropped completely. Only about 10% of legal cases reach a jury verdict. Still, these legal actions can be very troublesome, emotionally draining,1,6 and expensive. Between February 1, 2004 and December 31, 2005 there were more than 30,000 malpractice payments made on behalf of practitioners in the United States and these totaled $8.8 billion. Of this, $1.7 billion were paid on behalf of children less than 19 years of age, for just over 4000 claims.12 In 2011, there were only 9758 malpractice cases involving payments made on behalf of physicians, the lowest since the National Practitioner Data Bank began tracking these in 1991. The total dollar value of payouts in 2011 was $3.2 billion, averaging $327,000.13 Pediatric cases tend to have higher payouts. A recent study found the mean indemnity for pediatric cases was $521,000, the highest of all specialties.5 Juries are generally sympathetic to children and award large sums when a physician is found negligent. Young children with a poor outcome who require care for their entire lives are awarded the highest payments.12

A lawsuit is usually initiated when there is a bad outcome, especially if the family is unhappy with the medical staff. Some families file a lawsuit seeking revenge against a physician or a hospital. Sometimes, the patient and family are angry when they have unrealistic expectations and the outcome is not what they expected. Others sue hoping to obtain resources to care for their handicapped child. Some parents file a lawsuit to relieve their own guilt, and greed occasionally plays a role in legal proceedings. A lawsuit can be triggered when a relative or a physician implies that the treatment given to a child fell below the standard of care.1 ED staff members can unintentionally precipitate a malpractice lawsuit by raising their eyebrows, shaking their heads, or making derogatory comments about care received elsewhere.11,14

All clinicians who provide care to children in the ED are at risk for being sued. Years of experience and proper training helps to reduce litigation, but no one is truly immune to a malpractice suit. Children often present to the ED with unusual or atypical findings, and a correct diagnosis might not be immediately obvious. EPs should have a high index of suspicion when a child “just doesn’t look right” to the parent or the clinician. If there is a worrisome history or a suspicious physical examination, it is wise to observe the child in the ED for a period of time. Observation in the ED is advised for children with persistent vomiting, irritability, lethargy, or inability to drink fluids, as these can be signs of serious illness. It is also important to arrange for appropriate follow-up care soon after an ED visit. If a child does not improve despite the initial recommendations and treatment, reevaluate the patient with an open mind.1

HIGH-RISK CASES IN PEDIATRIC EMERGENCY MEDICINE

Some diagnoses are particularly difficult in the ED, and they are often the focus of malpractice lawsuits. For example, febrile children and those with abdominal pain create high-risk situations.2,7 This is not surprising because meningitis and appendicitis can have subtle presentations and serious morbidity or mortality if they are misdiagnosed or not treated promptly. These conditions may become more obvious as they progress, but the diagnosis might not be apparent when the child first presents to the ED.1,3,11 Fortunately, there are fewer case of meningitis in recent years due to multiple vaccines for children. However, the ED management of the febrile child is still a challenge.

Another pediatric condition that often results in litigation is misdiagnosis or delay in care for testicular torsion. Some of these legal cases are related to failure of the EP to carefully examine the genitalia of boys who complain of abdominal or scrotal pain.2 Other conditions often involved in malpractice lawsuits include medication errors1,15 and missed fractures.2,4 Lacerations involving the hand and fingers are often involved in malpractice claims when complications develop.1,4 ED physicians must have a careful approach to these conditions. Table 150-1 summarizes the pediatric diagnoses commonly involved in ED malpractice actions.

TABLE 150-1

Common Pediatric Diagnoses Involved in ED Malpractice Claims

• Appendicitis

• Child abuse

• Dehydration

• Fractures

• Medication errors

• Meningitis

• Meningococcemia

• Myocarditis

• Slipped capital femoral epiphysis

• Testicular torsion

• Wounds and lacerations (foreign bodies and other complications)

Source: Data from Selbst SM, Korin JB. Preventing Malpractice Lawsuits in Pediatric Emergency Medicine.

Dallas, TX: American College of Emergency Physicians; 1998. Reprinted with permission.

image STANDARD OF CARE

A bad outcome is not necessarily due to improper care. Likewise, improper care does not always cause a bad outcome. In a malpractice lawsuit, a plaintiff’s attorney must show that there is a relationship between bad practice and bad outcome. The attorney must also establish that the physician had a duty to the patient, that this duty was breached, causing an injury to the patient,6 by not meeting the Standard of Care, which is defined as that, which a reasonable clinician, in a particular specialty, would have given to a similar patient under similar circumstances.16,17

image STATUTE OF LIMITATIONS

With children, the statute of limitations period is often extended because it may take several years before the pediatric patient exhibits poor effects from the medical treatment. For example, if a baby has a bad outcome related to delay in diagnosis or treatment of meningitis, the family can file a lawsuit 2 years after the injury (e.g., delayed development) is discovered. This can be years after the illness, when the child begins school.18 Even if the parents chose not to file a lawsuit, the pediatric patient can chose to do so years later. In many jurisdictions, a patient may initiate a lawsuit once he/she reaches the age of majority (18–21 years old) (i.e., in the range of 20 years after the event).1,6,11 It can be difficult to defend such a case years later when memories have faded, especially if complete medical records cannot be located.

image COMMUNICATION

There is a direct relationship between good communication skills of the physician and fewer malpractice lawsuits.14 Similarly, physicians who generate patient complaints are more likely to be sued.19 If the patient and family perceive the staff had a caring attitude, openness, professionalism, integrity and standards of excellence, a lawsuit may be preventable despite a bad outcome.1,20

If a family speaks a foreign language, the hospital must supply a translator.21 It is not acceptable to merely record that the “history was limited by language.” Using family members to translate is a common practice in many EDs but carries some risk.22 One study showed only 60% of guardians for pediatric patients complied with discharge instructions to follow up with a physician after leaving the ED.23 To improve compliance, give written, detailed discharge instructions and go over these carefully with the parent or guardian and with the patient if he or she is old enough to understand. Include a few examples of worrisome signs to look for at home. Although it is not possible to list every potential complication, give parents clear directions about when to see their primary care physician and when to return immediately to the ED. Instruct families how to find test results that may be pending at the time of discharge.24 Ask them to repeat the instructions to confirm their understanding.25 Have the parent sign the record to indicate he/she received and understands the discharge instructions. Write the diagnosis for caregivers at home.1,11,26 Explain the thought process to a parent at the time of discharge. Acknowledge uncertainty about the diagnosis when appropriate. Tell families that symptoms of serious illness (e.g., appendicitis, meningitis) can develop later and encourage them to call the ED or return if the child’s condition worsens.27 Studies demonstrate that the discharge of patients is not always done well.28,29

image HANDOFFS/TRANSFER OF CARE

Physicians, nurses, technicians, and others in the ED must communicate well to work as a team. Whenever a patient’s care is transferred to another provider in the ED or to an inpatient care unit in the hospital there is potential for miscommunication and a lapse in patient care. The attending EP is primarily responsible for patients in the ED and for arranging the appropriate level of care for admitted patients. Responsibility shifts when orders are written that identify another physician who will then oversee the care of the patient.1 A cooperative attitude among all providers reduces errors and legal exposure.

Change of shift is a particularly high-risk situation in the ED.3033 One study showed that lawsuits involving trainees are frequently related to poor handoffs.8 A standardized ED sign-out could reduce medical errors related to this transfer,34,35 and careful patient reassessment by the incoming physician is recommended.24,30

image CONSULTANTS IN THE ED

EPs should consult a specialist when another opinion is needed or the required treatment is beyond their expertise.18 It is prudent to comply with a family’s request for a second opinion or consultation with a specialist when reasonable.36 Timely consultation with consultants is essential in the ED.37,38 If a child has a clinical picture of testicular torsion, consult a urologist promptly rather than wait for results of imaging studies.37 If the consultant does not arrive in a timely manner, pursue other options like calling the consultant’s supervisor, specialty attending, or other sources for help.38 Document the time the specialist was called, the time he or she arrived, and the time he or she assumed care of the patient (if applicable).

The EP often calls a patient’s primary care physician (PCP) to discuss the need for admission, to obtain special studies, or to arrange follow-up care. Consider the opinion of the PCP or other consulting physicians outside the ED as advisory only.36 If the EP believes hospitalization is warranted and the PCP (or another consultant) disagrees, then the PCP or consultant must come to the ED to evaluate the child.

Telephone consultation, without direct examination by the consultant, may be appropriate if only limited advice or information is needed.1,37 Record the essence of the telephone conversation with the consultant in the patient’s chart. Both the consultant and the EP accept some communication risk with this type of consultation.1

EPs commonly consult with radiologists, especially when there is doubt about the interpretation of a radiograph. The EP is liable for misreading a child’s x-ray if there is a poor outcome and no radiologist is involved. If there is subsequent litigation, a jury will determine the level of expertise that the ED physician should possess.1 If a radiologist is not available in the ED, tell the family that the interpretation is preliminary. A system to contact them if there is a discordant reading by radiology must be in place. Tell them how they can obtain the final reading if appropriate.

EPs sometimes disagree with consultants about patient management. Consultants are not always correct. The EP can be sued with a specialist when a patient is harmed due to a consultant’s action or inaction.39 EPs are not legally bound to accept the advice of consultants.36 However, do not reject the advice of a specialist without careful discussion and consideration of the consequences. When applicable, document why the consultant’s recommendations are not followed.1,38

image DOCUMENTATION

Good documentation of the ED encounter prevents lawsuits. A record that demonstrates thorough examination and testing can discourage the plaintiff’s attorney from proceeding further. An incomplete record may motivate a lawsuit. Document carefully for all patients because it is not possible to predict which one will have an adverse outcome and pursue litigation.1,11 Many malpractice cases are settled because appropriate medical care that was provided was not substantiated in the medical records.1,11,24,26

Electronic medical records (EMRs) may reduce medical errors and malpractice lawsuits. A study of office based physicians showed users of EMRs were less likely to pay malpractice claims (over 10 years) than nonusers (6.1% vs. 10.8%), but the difference was not statistically significant.40 However, EMRs are not without risk.41 Errors may occur when using dropdown lists in a hurry.24 Quickly clicking through a template without noticing that the language is inappropriate for a particular patient, could compromise a physician’s defense in a malpractice suit.42 The temptation to copy and paste patient histories instead of taking new histories, risks missing new information and perpetuates previous errors.41

The medical record should describe the history of present illness well. Include information relevant to the chief complaint. Record details of the child’s oral intake, level of activity at home and medications received. Describe the physical examination in detail. Carefully address abnormal vital signs.1,11,26 Note the child’s general appearance, state of hydration, and level of activity or playfulness in the ED.1,11,24,26Record a progress note if the child remains in the ED for a significant amount of time and note the patient’s improvement before discharge. Provide details about any procedures performed. At the time of discharge, note the diagnostic impression, which should be consistent with the treatment rendered.24 Be sure the record reflects a concerned and professional attitude toward the patient. Do not include insensitive terms, derogatory statements about the patient’s parents, or comments that could be embarrassing if read in front of a jury.1,11,26 Accuracy and neatness counts; this can greatly affect the way a jury feels about a physician. Read the notes written by others who provided care to the child, such as nursing staff, consultants, and prehospital care providers.26 The physician’s notes should be consistent with those of other professionals who record in the chart.1,11,26

Errors in the medical records are understandable in a busy, noisy ED. Correct these errors appropriately. Do not attempt to cover up mistakes by blacking out words or phrases. For hand-written notes, draw a single line through the error and initial and date this. Do not attempt to alter the record later!1,11 With an EMR, all subsequent entries are obvious. Even hand written notes can be analyzed by an expert and late entries will be found.

image ISSUES OF CONSENT

Minors often come to the ED without their parents or guardians. State laws vary on the management of such individuals and clinicians are advised to become familiar with local statutes. Regardless of where you practice, do not delay the medical screening examination trying to obtain consent or to determine guardianship when a child presents with an apparent emergency without his/her parents. Parental consent is not needed when treatment is required to prevent death or serious injury. The greater the risk of serious harm to a child, the more justified it is to act without delay in the absence of the legal guardian. Make an effort to contact the legal guardian and obtain consent for treatment, but do not delay therapy. When a physician is unsure if immediate care is needed in the absence of the guardian, it is best to err on the side of treatment rather than to withhold care.1,43 Act as a reasonable parent would want a reasonable physician to do.

Adolescents pose additional dilemmas when they present for care in the ED without parents. Often the adolescent does not want his/her parent to know of the ED visit. Most states recognize an emancipated minor and allow treatment without parental consent for those who are married, pregnant, graduated high school, served in the armed forces, or is otherwise independent of parental care or control.44 Courts in almost all states also allow minors to be treated in the ED without parental consent or knowledge for specific medical conditions. States recognize that many teenagers would avoid treatment of venereal disease if involvement of their parents were required. This could put the patient at risk and also endanger the public. Thus, all states allow a minor to receive treatment for venereal disease without parental consent. Some states allow minors to consent to testing and treatment for pregnancy and HIV.1,44Several states recognize “mature minors” and allow them to give consent for some treatment that does not involve serious risks. The physician must determine that the minor is competent to understand and give consent.1,44

Adolescents in the ED without their parents sometimes cause legal dilemmas. They may not be aware of their complete medical histories, immunizations and allergies and they may have limited ability to understand directions or comply with treatment. Consequently, medical care could be compromised and the physician may be liable. The right of confidentiality is extended to a minor who consents to his or her own care. Adolescents treated in the ED without parents (under a state’s mature minor statute) who insist on privacy, must be respected unless it is believed that failure to inform the parents will harm the patient.1,44 The adolescent who consents for his or her own care is legally responsible for the ED bill; parents are not responsible for contracts made by their children. Hospital billing and medical record systems should protect the adolescent’s right to privacy. Unfortunately, this is not always feasible.

image INFORMED CONSENT

Parents, legal guardians, emancipated minors, and older children have the right to know about their medical treatment so they can make informed decisions about their care. Unless an extreme emergency exists, they must give consent for treatment and significant procedures. To make an informed decision, the patient or parent must be autonomous, or free of coercion or manipulation by the physician or family. The patient or parent must be capable of making the decision. Pain, medications, or hypotension should not impair his or her ability to decide. Adequate disclosure is also essential. Discuss the significant risks of treatment and those that could result from withholding treatment. Tell parents what a reasonable person needs to know to make an informed decision and list treatment alternatives. Many patients/parents want to know the doctor’s opinion and will follow recommendations if the physician seems trustworthy. Finally, the patient/parent must comprehend the information. Establish that the teenager or parent understands the information you have given and is making a reasonable objection or an irrational choice. Have the patient/parent repeat the information given in his or her own words.44 Table 150-2summarizes the important features of informed consent.

TABLE 150-2

Important Elements of Informed Consent

• Child’s diagnosis

• Purpose and nature of planned procedure or treatment

• Risks, side effects (significant or common)

• Reasonable alternatives and their risks

• Prognosis with and without treatment

Source: Reproduced with permission from Kassutto Z, Vaught W. Informed decision making and refusal of treatment. Clin Ped Emerg Med 2003;4(4): 285-291.

image REFUSAL OF CARE

Parents are expected to act in their child’s best interests. Occasionally, patients or parents refuse treatment or leave the ED against medical advice. The patient or parent may become angry, afraid, disoriented, or have certain religious beliefs prompting them to leave the ED prematurely. The child may worsen if their medical problem is not addressed and the medical staff will likely feel a sense of failure and frustration when their advice and recommendations are disregarded. The hospital and physicians could be exposed to a lawsuit if the patient suffers serious morbidity or death after leaving the ED against medical advice.1 Try to identify why the patient or family wants to depart the ED. If the patient or parent seems angry, allow him or her to express concerns without interruption.43 If a staff member made the family angry, ask that person to apologize or avoid further contact with the patient. Remain polite, professional, and flexible in the treatment plan. If possible, offer the patient/parent an opportunity to speak to another physician, perhaps the primary care physician. Carefully document the discussions and events that took place in the ED.1,43

When child abuse is suspected, and the perpetrator is unknown, parents cannot refuse care.1 Likewise, disoriented or impaired teenagers/parents are not permitted to leave the ED regardless of their wishes. Since they cannot understand the risks and benefits of treatment or the risks of leaving the ED, he/she cannot be permitted to refuse care. Similarly, life-threatening problems justify immediate medical care regardless of opposition from patient or family. Most courts in the United States will not allow a parent to impose his or her religious beliefs on a minor, especially in a life-threatening situation. Thus, if a blood transfusion is essential for treatment, it should be given.45When parents object, report the case to the appropriate agency as medical neglect and obtain a court order while simultaneously delivering emergency care. If it is unclear whether a life-threatening situation is present, err on the side of treatment. It is best to win the cooperation of the parents, but if they refuse, the staff is justified in treating the child.

image EMTALA

The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal law that requires a medical screening examination for all patients who present to the ED regardless of consent or who brings the child to the ED. EMTALA is vague about who can perform the medical screening examination. Many experts recommend this be performed by an EP. Triage assessment is not considered a medical screening examination.46 A medical screening examination may range from a brief history and physical examination to a complex process involving ancillary studies, procedures, and consultants as necessary.46 The screening examination must include all appropriate ancillary tests and services normally available to any patient regardless of the patient’s insurance. The screening examination must determine if an emergency medical condition exists, which is defined as “acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual (or, with respect to the pregnant woman, the health of the woman or her unborn child) in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part.”46 EMTALA requires that the patient be stabilized within the capabilities of the hospital. The patient is stable when “no material deterioration of the emergency medical condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from the facility.”46

A patient may be transferred from the ED when medically indicated and a level of care is needed that is not available at the transferring hospital. A child may also be transferred if the patient/parents request the transfer. If the transfer is medically indicated, the EP must document that the benefits of transfer outweigh the risks,47 and must arrange for an “appropriate” or safe transfer. In a pediatric ED, stabilize the adult patient as best as possible before transferring. Obtain written informed consent when the patient or parent requests transfer. Provide copies of the medical record for the receiving hospital. EMTALA requires a receiving hospital to accept patients with emergency medical conditions if they possess resources not available at the transferring hospital. However, the receiving hospital must have an available bed and personnel to care for the patient. If these requirements cannot be met, do not transfer the child.48 Failure to comply with EMTALA can result in fines to the physician, which may not be covered by malpractice insurance. Also, the hospital can be punished for EMTALA violations and may be terminated from the Medicare program.46

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