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Legal and Ethical Aspects of Pediatric Emergency Medicine . Carmen M. Lebrón MD FAAP Emergency Department San Jorge Children’s Hospital San Juan, Puerto Rico. We will discuss…. Informed consent in the emergency department Malpractice EMTALA. Consent. Consent.

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legal and ethical aspects of pediatric emergency medicine

Legal and Ethical Aspects of Pediatric Emergency Medicine

Carmen M. Lebrón MD FAAP

Emergency Department

San Jorge Children’s Hospital

San Juan, Puerto Rico

we will discuss
We will discuss…
  • Informed consent in the emergency department
  • Malpractice
  • 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
some definitions
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


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.


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


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

  • 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
  • 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
  • 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
  • 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


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

refusal of care
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
refusal of care19
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

Medicine is a calling.

Medicine is a profession.

Medicine is a business.

People in business get sued.

Gary N. McAbee, DO, JD

  • 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:


Accessed February 20, 2009

why families sue physicians
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

factors in malpractice actions in the emergency department
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

factors in malpractice actions in the pediatric emergency department
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
malpractice elements
Malpractice Elements
  • Must have all 4 elements in order for malpractice to occur
    • Duty
    • Breech of duty
    • Harm
    • Causation
  • 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
breech of duty
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
breech of duty28
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.
  • 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
  • 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
most prevalent conditions in pediatric malpractice claims caused by error in diagnosis 1985 2006
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

pediatric lawsuits arising in an emergency department 1985 2000
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

risk management techniques
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
risk management techniques35
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
risk management techniques the chart
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
risk management techniques the chart38
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
risk management techniques the chart39
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
  • 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

  • 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
  • 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)
  • 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
  • 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”
  • 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.
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
  • 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
emtala what about the kids
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; 2000:23–65

emtala what about the kids55
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.”

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
summary malpractice
  • Be familiar with high risk conditions in the emergency department
  • Take the time to communicate with your patients and their parents
  • 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!!!
summary emtala
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
food for thought
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