Legal and Ethical Aspects of Pediatric Emergency Medicine

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Legal and Ethical Aspects of Pediatric Emergency
Medicine

• Carmen M. Lebrón MD FAAP
• Emergency Department
• San Jorge Childrens Hospital
• San Juan, Puerto Rico

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(No Transcript)
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We will discuss

• Informed consent in the emergency department
• Malpractice
• EMTALA

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Consent
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Consent

• Informed consent for medical care is a basic
  requirement that should be met from the outset of
  almost all physician-patient relationships
• Potential legal and ethical conflicts arise when
  the patient is a minor
• minors are not legally permitted to give consent
  for their own care based on their level emotional
  maturity and cognitive development

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Some definitions

• Minor
• An individual under the age of majority
• Defined as age 18 in all but 4 states¹ AND Puerto
  Rico
• In PR legal age of majority is 21 as defined by
  the civil code
• Adopted by the Department of Health
• NOT by the Department of Family and Child
  Services
• Legal age of majority for them is 18

1.Boonstra H, Nash E. Minors and the right to
consent to health care. Guttmacher Rep Public
Policy 2000348
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• 1991 study in Michigan documented that
  approximately 3 of the visits by minors to
  emergency departments were unaccompanied¹
• More recently, this number has been estimated to
  be even higher by the American Academy of
  Pediatrics, Committee on Pediatric Emergency
  Medicine

• 1.Treloar DJ, Peterson E, Randall J, et al. Use
  of emergency services by unaccompanied minors.
• Ann Emerg Med 199120297301.

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• Adolescents in particular are considered
  relatively disenfranchised from the health care
  system, more often uninsured, and without a
  consistent source of primary care
• Adolescents account for 10 to 15 of all
  pediatric emergency department visits and greater
  than 5 of adult emergency department visits ¹

1. Ziv A, Boulet JR, Slap GB. Emergency
department utilization by adolescents in the
United States. Pediatrics 199810198794
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• An analysis of the 1997 Commonwealth Fund Survey
  of the Health of Adolescent Girls found that 4.6
  of adolescents, or 1.5 million individuals,
  identified the emergency department as their only
  source of health care¹

Wilson KM, Klein JD. Adolescents who use the
emergency department as their usual source of
care. Arch Pediatr Adolesc Med 20001543615
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Consent

• Can prevent Emergency Department (ED) physicians
  from providing timely evaluation and care
• Its a legal concept that has become more complex
• Consent laws vary from state to state
• Times are changing

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Consent

• Joint Commission on Accreditation of Healthcare
  Organizations (JACHO) requires a policy on
  consent for treatment and the rights of patients
• Interpretation of this policy may cause delays
• Triage
• Registration
• Delay
• Rarely occurs when patient arrives in the ED by
  ambulance

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Consent

• Consent for minors is obtained through parents or
  legal guardians
• May be given by variety of caretakers acting in
  loco parentis
• Presumption that those individuals would use a
  best interest standard
• Parental consent generally expected when a minor
  seeks medical care
• Numerous exceptions to this requirement

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Consent

• Consent is considered to be implied in the
  emergency treatment of a minor
• The criteria for defining an emergency are
  neither uniform nor universal
• Treatment that may lessen pain or prevent
  disability in the near or distant future also may
  be considered to fall under the realm of
  emergency care¹

1. American Academy of Pediatrics, Committee on
Pediatric Emergency Medicine. Consent for
emergency medical services for children and
adolescents. Pediatrics 20031117036
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Legal Exceptions to Informed Consent Requirement Medical Care Setting
The emergency exception Minor seeks emergency medical care.
The emancipated minor exception Minor is self-reliant or independent Married In military service Emancipated by court ruling Financially independent and living apart from parents In some states, college students, runaways, pregnant minors, or minor mothers also may be included.
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Legal Exceptions to Informed Consent Requirement Medical Care Setting
The mature minor exception Minor is capable of providing informed consent to the proposed medical or surgical treatmentgenerally a minor 14 y or older who is sufficiently mature and possesses the intelligence to understand and appreciate the benefits, risks, and alternatives of the proposed treatment and who is able to make a voluntary and rational choice. (In determining whether the mature minor exception applies, the physician must consider the nature and degree of risk of the proposed treatment and whether the proposed treatment is for the minors benefit, is necessary or elective, and is complex.)
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Legal Exceptions to Informed Consent Requirement Medical Care Setting
Exceptions based on specific medical condition Minor seeks Mental health services Pregnancy and contraceptive services Testing or treatment for human immunodeficiency virus infection or acquired immunodeficiency syndrome Sexually transmitted or communicable disease testing and treatment Drug or alcohol dependency counseling and treatment Care for crime-related injury, child abuse or neglect
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• Current federal law under the Emergency Medical
  Treatment and Active Labor Act (EMTALA) mandates
  a medical screening examination (MSE) for every
  patient seeking treatment in an ED of any
  hospital that participates in programs that
  receive federal funding, regardless of consent or
  reimbursement issues¹
• EMTALA preempts conflicting or inconsistent state
  laws, essentially rendering the problem of
  obtaining consent for the emergency treatment of
  minors a nonissue at participating hospitals

Kuther TL. Medical decision-making and minors
issues of consent and assent. Adolescence
20033834358
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Refusal of care

• Competent minor/parents refusal of care can be
  addressed asking 3 questions
• Is the treatment necessary in the foreseeable
  future?
• If no, may be discharged home with appropriate,
  specific follow up
• May entail child protective services
• Is the treatment needed in the immediate future?
• Court orders directly from judicial official or
  child protective services

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Refusal of care

• Is there immediate need for medical intervention?
• Consider medical condition as emergency and treat
• Crucial that documentation on the medical chart
  indicates assessment of
• The need for consent
• If indicated, determination of the parties
  approached for consent
• Measures taken to obtain an informed consent
• Identification and resolution of conflict

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Malpractice
Medicine is a calling. Medicine is a profession.
Medicine is a business. People in business get
sued. Gary N. McAbee, DO, JD
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Malpractice

• Medical malpractice litigation continues to be at
  a crisis level in 17 states
• This level has declined from a peak of 22 states
  designated to be in crisis by the American
  Medical Association and, in part, represents the
  effort of tort reform in some regions of the
  country

Doctors for Medical Liability Reform. Protect
Patients Now! action center. Available at
www.protectpatientsnow.org/site/ c.8oIDJLNnHIE/b.1
090567/k.C061/StateInformation.htm. Accessed
February 20, 2009
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Why families sue physicians

• Poor outcome
• Poor communication, want more information
• Seek revenge against physician
• Need to obtain financial resources
• Wish to protect society from bad doctor
• Desire to relieve guilt
• Greed

Selbst, SM, Korin, JB. Preventing Malpractice
Suits in Pediatric Emergency Medicine. 1999
American College of Emergency Physicians pg 5
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Factors in malpractice actions in the emergency
department

• Long waiting time
• Long hours for staff
• Excessive noise
• Brief physician visit
• Impersonal atmosphere
• High patient volume
• Lack of rapport with patients

Selbst, SM, Korin, JB. Preventing Malpractice
Suits in Pediatric Emergency Medicine. 1999
American College of Emergency Physicians pg 5
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Factors in malpractice actions in the PEDIATRIC
emergency department

• Limited communication skills of young patients
• Must rely on parents for history
• Family members with a different set of
  interpretations and concerns
• Difficult physical exam
• Lack of cooperation
• Issues of consent

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Malpractice Elements

• Must have all 4 elements in order for malpractice
  to occur
• Duty
• Breech of duty
• Harm
• Causation

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Duty

• Pretty much guaranteed in the ED
• Prosise vs Foster (VA 2001)
• 4 y/o w chickepox seen by intern 3rd year
  resident
• No call to attending at home who was the on-call
  attending
• Seen the next day-diffuse varicella
  pneumonia-died 1 month later
• Action suit brought against the the attending
• Attending found not guilty
• No call, no relationship established

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Breech of Duty

• Standard of care
• That which any reasonable physician in a
  particular specialty would have given to a
  similar patient under similar circumstances
• Amaral vs Frank (CA)
• 10 y/o seen twice for LLQ pain, fever, nausea
• Discharged with viral gastroenteritis
• To OR 3 days later w ruptured appy, 2 week
  admission, big scar
• Plaintiff missed diagnosis
• Defense atypical presentation
• Judgement for the plaintiff for 75,000

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Breech of Duty

• Torres Vs McBeth (CA)
• Young man w 15 hrs of lower abdominal pain,
  rebound, voluntary guarding, pain worse w
  walking. ? WBC increased w left shift
• Given demerol, no consult
• Discharged with instructions to f/u in 8-12 hrs,
  patient followed those instructions
• Dx ruptured appy
• Plaintiff missed diagnosis in a classic case
• lack of care due to lack of insurance
• Defendant standard of care was applied (i.e
  serial exams are the standard of care)
• Defense wins.

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Harm

• Peller vs Kayser (1994)
• 12 y/o boy w gunshot to head near medulla
• Admitted, phone conversation w neurosurgery. Not
  seen by neurosurgery for 9 hrs, died shortly
  after.
• Plaintiff delay in consult, denied chance of
  survival, no debridement or aggressive care
• Defense fatal injury
• Defense wins.
• Actions did not cause harm
• It was inevitable outcome

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Causation

• Harbuck vs TriCity ER
• 12 y/o goes to ED with chin cut
• TAC applied. Staff claim anxiety attack, parents
  claim seizure.
• Patient suffered subsequent seizures, depression,
  required Dilantin over months
• Plaintiff Epilepsy and depression were result of
  TAC
• Defense Properly applied TAC does not cause
  seizures
• Veredict for the defense
• Must have causation to have negligence

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Most Prevalent Conditions in Pediatric
Malpractice ClaimsCaused by Error in Diagnosis
(19852006)

• 1. Meningitis
• 2. Appendicitis
• 3. Specified
• nonteratogenic
• anomalies
• 4. Pneumonia
• 5. Brain-damaged
• infant

McAbee, GN. Donn, SM., et al. Medical Diagnoses
Commonly Associated With Pediatric Malpractice
Lawsuits in the United States. Pediatrics
2008122e1282-e1286
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Pediatric lawsuits arising in an emergency
department1985-2000

• children lt2 years old
• Meningitis
• neurologically impaired newborns
• pneumonia
• children from 3 to 11 years old
• Fracture
• Meningitis
• appendicitis
• children from 12 to 17 years old
• Fractures
• Appendicitis
• testicular torsion

McAbee, GN. Donn, SM., et al. Medical Diagnoses
Commonly Associated With Pediatric Malpractice
Lawsuits in the United States. Pediatrics
2008122e1282-e1286
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How do we avoid malpractice suits?

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Risk Management Techniques

• Listen to People
• Roe v Roe(MA)
• 6 y/o w CP and Developmental Delay and recurrent
  status epilepticus presents to ED in status
• Mom presents a protocol for treatment prepared by
  the childs neurologist calling for high dose of
  anticonvulsants
• ED doc ignored protocol and used standard doses
• Child continued seizing, herniated
• Case settled for 750,000

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Risk Management Techniques

• Be nice to people
• Consider sitting for interview
• Address the child when age appropriate
• Acknowledge the parents fears
• Careful how you say things!!!
• he just has a virus
• Dont worry hell be fine
• Address the specifics of the condition, expected
  progression and possible complications

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Risk Management Techniques-the chart

• Document all pertinent positive and negative
  clinical findings
• Document carefully
• Entries should be clear, complete, and free of
  flippant, critical, or other inappropriate
  comments
• assume that Dear Mr/Ms Attorney is written at
  the top of the chart
• There are differences of opinion about how much
  to write in a medical chart, but quality is
  always preferred over quantity

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Risk Management Techniques-the chart
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Risk Management Techniques-the chart

• Communication and use of terminology is critical
• Good communication involves the use of laymans
  terms and the avoidance of medical jargon
• Avoid language that blames ( i.e unintentionally,
  inadvertently) or embellishes (i.e profound,
  excessive) unless it is relevant to medical care

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Risk Management Techniques-the chart

• Careful and extensive documentation is critical
  with patients likely to sustain long-term
  sequelae
• Read the nurses notes
• Specifically address discrepancies in your note
• Verbal instructions should be simple, clear, and
  concise.
• Written material provided to patients should be
  written at an eighth-grade level

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Malpractice

• American Society of Anesthesiologists (ASA)-More
  than 20 years ago the ASA created its closed
  claims-analysis project
• By instituting risk-management techniques to
  improve patient safety, anesthesiologists
  decreased their liability risk as a group from
  one of the most frequently sued specialties to a
  current rank of 20th of the 28 medical
  specialties listed

Pierce EC. Looking back on the anesthesia
critical incident studies and their role in
catalyzing patient safety. Qual Saf Health Care.
200211(3)282283
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Malpractice

• If pediatricians are knowledgeable about the
  medical conditions that have produced successful
  malpractice suits, they can institute
  risk-management techniques that can be effective
  for both improving patient safety and reducing
  risk of liability

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EMTALA
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EMTALA

• Emergency Medical Treatment and Active Labor Act
• Enacted by congress in 1986 as part of the
  Consolidated Omnibus Budget reconciliation Act
  (COBRA) of 1985 (42 U.S.C. 1395dd)
• Anti-dumping law
• Prevents hospitals from transferring uninsured or
  Medicare/Medicaid patients to public hospitals
  without at minimum, providing a medical screening
  examination (MSE) to ensure they were stable for
  transfer
• 24 L.P.R.A. 3115 (2006)

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EMTALA

• Requires hospitals with emergency departments to
  screen and treat the emergency medical conditions
  of patients in a non-discriminatory manner to
  anyone, regardless of their ability to pay,
  insurance status, national origin, race, creed or
  color
• Technical advisory group convened in 2005 by the
  Centers for Medicare Medicaid Services (CMS) to
  study EMTALA

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EMTALA

• The purpose of the MSE is to determine whether an
  emergency medical condition (EMC) exists, as
  defined by EMTALA
• Nursing triage does NOT qualify as MSE
• EMC
• a condition manifesting itself by 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 individuals health or the health
  of an unborn child in serious jeopardy, serious
  impairment of bodily function, or serious
  dysfunction of bodily organs

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EMTALA

• Applies when an individual comes to the
  emergency department
• Dedicated emergency department definition
• A specially equipped and staffed area of the
  hospital used a significant portion of the time
  for initial evaluation and treatment of
  outpatients for emergency medical conditions.

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EMTALA

• CMS further defines an ED as meeting one of the
  following criteria
• Licensed by the state as an ED
• Holds itself out to the public as providing
  emergency care
• During the preceding calendar year, provided at
  least 1/3 of its outpatient visits for the
  treatment of EMC
• EMTALA does not apply to a person soliciting a
  MSE at a department off the hospitals main
  campus facility

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EMTALA

• Hospital obligations
• A MSE will be provided to any individual who
  comes and requests it to determine if an EMC
  exists
• Dont delay!
• Signs must be posted to notify patients and
  visitors of their rights to a MSE and treatment
• Treatment for an EMC must be provided until
  resolved or stabilized
• If the hospital is not capable of solving the
  condition an appropriate transfer to another
  hospital must be done

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EMTALA

• Hospital obligations
• Those institutions with specialized capabilities
  are obligated to accept transfers from hospitals
  who lack the capability to treat unstable EMC
• Must report to CMS or to the state survey agency
  any time it may have received in an unstable EMC
  from another hospital

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EMTALA

• Requisites for transfers
• Stable patients the treating physician must
  determine that no material deterioration will
  occur during the transfer between facilities
• Unstable patients
• Physician must certify that the medical benefits
  expected from the transfer outweigh the risks
• OR
• Patient makes a transfer request in writing after
  being informed of the hospitals obligations
  under EMTALA and the risks of transfer

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EMTALA

• Appropriate transfers
• Ongoing care must be provided by the transferring
  hospital within its capability until the moment
  of transfer to minimize the risks during the
  transfer
• Copies of the medical records must be provided by
  the transferring hospital
• Space and qualified personnel must be confirmed
  by the institution which requests the transfer
• Transfer must be made with the appropriate
  medical equipment and qualified personnel

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EMTALA

• Penalties
• 2 year statute for civil enforcement of any
  violation
• Termination of hospital/physician Medicare
  provider agreement
• Hospital fine of up to 50,000/violation
• Physician fines 50,000/violation
• This includes on-call physicians

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EMTALA

• Penalties
• Hospital may be sued for personal injury in civil
  court under a private course of action
• The receiving facility can bring suit to recover
  damages
• An EMTALA violation can be cited without adverse
  outcome to the patient
• No EMTALA violation can be cited if the patient
  refuses examination /or treatment

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EMTALA-what about the kids?

• The MSE and the stabilization of the patient with
  an identified EMC must not be delayed
• Under federal law, a minor can be examined,
  treated, stabilized, and even transferred to
  another hospital for emergency care without
  consent ever being obtained from the parent or
  legal guardian

Bitterman RA. The Medical Screening Examination
Requirement. In Bitterman RA, ed. EMTALA
Providing Emergency Care under Federal
Law. Dallas, TX American College of Emergency
Physicians 20002365
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EMTALAwhat about the kids?

• Because the treatment of fractures, infections,
  and other conditions may broadly be considered as
  the prevention of disabling complications or EMCs
  requiring therapy, many centers currently treat
  all children arriving in the ED, even if
  unaccompanied by a parent or caretaker.

Jacobstein CR, Baren JM. Emergency department
treatment of minors. Emerg Med Clin North Am.
199917341352, x
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Summary-Consent

• Must be met for most physician-patient
  relationships
• Do not allow it to delay care for your patient in
  the ED
• Treat emergent situations as such
• Remember exceptions to consent rule
• Know the process for conflict resolution/cour
  order attainment in your institution
• Remember to document all issues regarding consent
  in the medical chart

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Summary-malpractice

• Be familiar with high risk conditions in the
  emergency department
• Take the time to communicate with your patients
  and their parents
• DOCUMENT, DOCUMENT, DOCUMENT
• Provide clear and concise discharge and follow up
  instructions-these are your last chance!!!
• Participate in developing risk-minimizing
  strategies at your institution
• Reducing risk for patient reduces liability
  risk-everyone wins!!!

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Summary - EMTALA

• All patients arriving to an ED must receive a MSE
• If no EMC exists EMTALA responsibilities cease
• If EMC exists it must be stabilized to the
  capabilities of the institution
• If it cant be resolved, an appropriate transfer
  to an institution fitted to manage the patients
  condition must occur
• The transferring institutions responsibilities
  cease at the point of transfer of care when the
  patient arrives at the receiving institution

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Food for thought...

• Physicians would still be well served
  medically and legally to follow the advice of a
  1991 editorial
• Act like the patient is someone you care
  about. Act like you have the courage and
  intelligence to tell the difference between
  necessary and unnecessary care and testing, and
  that you have done for the patient what you would
  have done for your own family member.

Henry GL. Common sense. Ann Emerg Med.
199120319320