Transcript Legal and Ethical Aspects of Pediatric Emergency Medicine Carmen M. Lebrón MD FAAP

Legal and Ethical
Aspects of Pediatric
Emergency Medicine
Carmen M. Lebrón MD FAAP
Emergency Department
San Jorge Children’s Hospital
San Juan, Puerto Rico
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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
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1.Boonstra H, Nash E. Minors and the right to consent to health care. Guttmacher Rep Public Policy 2000;3:4–8
 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 1991;20:297–301.
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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
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1. Ziv A, Boulet JR, Slap GB. Emergency department utilization by adolescents in the United States.
Pediatrics 1998;101:987–94
 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 2000;154:361–5
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Consent
 Can prevent Emergency Department (ED)
physicians from providing timely evaluation and
care
 It’s 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
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1. American Academy of Pediatrics, Committee on Pediatric Emergency Medicine.
Consent for emergency medical services for children and adolescents. Pediatrics 2003;111:703–6
Legal Exceptions to Informed
Consent Requirement
The “emergency” exception
The “emancipated minor” exception
Medical Care Setting
Minor seeks emergency medical care.
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
The “mature minor” exception
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Medical Care Setting
Minor is capable of providing informed
consent to the proposed medical or
surgical treatment—generally 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 minor’s 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
 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 2003;38:343–58
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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
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Doctors for Medical Liability Reform. Protect Patients Now!
action center. Available at: www.protectpatientsnow.org/site/
c.8oIDJLNnHIE/b.1090567/k.C061/StateInformation.htm.
Accessed February 20, 2009
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
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Selbst, SM, Korin, JB. Preventing Malpractice Suits in Pediatric Emergency Medicine.
1999 American College of Emergency Physicians: pg 5
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.
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1999 American College of Emergency Physicians: pg 5
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 & pneumoniadied 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
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 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
Breech of Duty
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 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
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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.
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 Claims
Caused by Error in Diagnosis (1985–2006)
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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 2008;122;e1282-e1286
Pediatric lawsuits arising in an emergency
department
1985-2000
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 children <2 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
GN. Donn, SM., et al. Medical Diagnoses Commonly Associated With
• testicularMcAbee,
torsion
Pediatric Malpractice Lawsuits in the United States. Pediatrics 2008;122;e1282-e1286
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 child’s 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”
• “Don’t worry he’ll 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
layman’s 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. 2002;11(3):282–283
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Malpractice
 If pediatricians are knowledgeable about the
medical conditions that have produced successful
malpractice suits, they can institute riskmanagement 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
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 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 individual’s health [or the health of an unborn
child] in serious jeopardy, serious impairment of
bodily function, or serious dysfunction of bodily
organs”
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 hospital’s 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
 Don’t 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
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 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 hospital’s
obligations under EMTALA and the risks of
transfer
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
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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; 2000:23–65
EMTALA–what 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.”
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Jacobstein CR, Baren JM. Emergency department treatment of minors.
Emerg Med Clin North Am. 1999;17:341–352, x
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 riskeveryone 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 can’t be resolved, an appropriate transfer to an
institution fitted to manage the patient’s condition
must occur
 The transferring institution’s 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. 1991;20:319–320
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