Legal and Ethical Aspects of Pediatric Emergency Medicine

1. Legal and Ethical Aspects of Pediatric Emergency Medicine Carmen M. Lebrón MD FAAP Emergency Department San Jorge Children’s Hospital San Juan, Puerto Rico

3. We will discuss… • Informed consent in the emergency department • Malpractice • EMTALA

4. Consent

5. 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

6. 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 2000;3:4–8

7. 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.

8. 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 1998;101:987–94

9. 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

10. 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

11. 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

12. 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

13. 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 2003;111:703–6

17. 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

18. 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

19. 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

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

21. 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.1090567/k.C061/StateInformation.htm. Accessed February 20, 2009

22. 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

23. 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

24. 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

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

26. 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

27. 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

28. 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.

29. 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

30. 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

31. Most Prevalent Conditions in Pediatric Malpractice ClaimsCaused by Error in Diagnosis (1985–2006) • 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

32. Pediatric lawsuits arising in an emergency department1985-2000 • 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 • testicular torsion McAbee, GN. Donn, SM., et al. Medical Diagnoses Commonly Associated With Pediatric Malpractice Lawsuits in the United States. Pediatrics 2008;122;e1282-e1286

33. How do we avoid malpractice suits?

34. 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

35. 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

36. 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

37. Risk Management Techniques-the chart

38. 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

39. 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

40. 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

41. 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

42. EMTALA

43. 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)

44. 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

45. 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 individual’s health [or the health of an unborn child] in serious jeopardy, serious impairment of bodily function, or serious dysfunction of bodily organs”

46. 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.

47. 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

48. 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

49. 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

50. 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 hospital’s obligations under EMTALA and the risks of transfer