David M. Cline
NEGLIGENCE AND MEDICAL MALPRACTICE
Negligence is defined as the omission to do something that a reasonable man, guided by those ordinary considerations that ordinarily regulate human affairs, would do, or the doing of something that a reasonable and prudent man would not do.
The four components of negligence are duty, breach of duty, damages, and causation. The plaintiff (injured or complaining party) must prove all four elements exist in order to successfully sue for malpractice.
Duty is considered a contract created by formation of a physician–patient relationship whereby the physician must act in accordance with “standards of care” to protect the patient from unreasonable risk. In general, by contract with the hospital, emergency physicians have a duty to see all patients who present themselves to the emergency department to be seen.
The standard of care is that which a similarly trained, “reasonable and prudent physician” would exercise under similar circumstances. The emergency physician is not required to exercise the optimally highest degree of skill and care possible, but must use the degree of skill and care ordinarily exercised by physicians within the same specialty.
Breach of duty occurs if the physician with an established duty fails to act in accordance with these standards of care by commission or omission of a certain act. Emergency physicians are held to a national standard of care for a specialist in emergency medicine.
Damages encompass any actual loss, injury, or deterioration sustained by the plaintiff due to the breach of duty. A plaintiff must prove that the damage occurred because of the physician’s negligence.
Legal causation theoretically consists of two branches: causation in fact and foreseeability. Causation in fact means that “an event A is the cause of another event B, if and only if B would not have occurred when and as it did but for event A.”
The concept of foreseeability is fulfilled if the patient’s damages must be the foreseeable result of the defendant’s substandard practice, as compared with the standard of the reasonable physician. A bad result without proof of violation of the standard of care does not constitute negligence.
Failure to diagnose myocardial infarction represents the largest single category of monetary settlements for emergency medicine physicians. Other high-risk areas for emergency physicians include abdominal pain, wounds, fractures, pediatric fever/meningitis, airway obstruction, central nervous system bleeding, and abdominal aortic aneurysms.
Table 194-1 lists high-risk conditions or diagnoses that warrant physician caution in when managing.
TABLE 194-1 Patient Complaints and Diagnoses Associated with High Risk
CONSENT
Informed consent is considered ideal—the patient knows and understands the risks, benefits, and consequences of accepting or refusing treatment. Specific, informed consent should be sought and obtained by the emergency physician whenever an invasive, risky, or complicated treatment or procedure is proposed. Examples include non-emergent thoracentesis, tube thoracostomies, paracentesis, and incision and drainage of a complex abscess.
Informed consent requires two conditions: that the patient possesses decision-making capacity and that the patient can make a voluntary choice free of undue influence.
Table 194-2 lists factors that should be considered when considering patient capacity.
TABLE 194-2 Factors for Emergency Physicians to Consider When Determining Capacity
Elements of informed consent include the following: (a) a concise statement of the patient’s medical condition or problem; (b) an understandable statement of the nature and purpose of the proposed test, treatment, or procedure; (c) a description of the risks, consequences, and benefits of the proposed test, treatment, or procedure; (d) a statement regarding any viable alternatives to the test, treatment, or procedure; and (e) a statement regarding the patient’s prognosis if the proposed test, treatment, or procedure is not given.
Express consent entails an awareness of the proposed care and an overt agreement (eg, in oral or written form) to proceed. An example would be the patient who comes to the emergency department, requests assistance for a problem, and signs a registration form authorizing evaluation and treatment of the problem.
Implied consent is invoked if an emergency exists and the patient is incompetent (eg, a minor, or someone with an altered mental status). Simple procedures such as minor wound suturing, phlebotomy, injections, and peripheral IVs are allowed under express or implied consent. An exception to this is testing for human immunodeficiency virus (HIV), which requires written informed consent.
Emergency consent bypasses normal consent standards due to the rapid need to treat a clinically ill patient. Implied consent is inferred by the patient’s actions but without specific agreement. Emergency consent covers actions such as emergent intubation or placement of central lines in a critical patient when there is no other access.
Failure to obtain appropriate consent can leave the emergency physician vulnerable to a legal action based on battery (intentional, unauthorized touching).
MINORS AND CONSENT
The law always implies consent for treatment of a child in the event of an emergency. Parental consent is not needed; it is implied.
All states without a general consent statute for minors have provisions that specifically permit the physician to treat any minor for venereal disease.
Most states have treatment statutes for minors (usually 16 years or older), which enable them to consent for medical care. Many states also specifically permit treatment of minors for drug or alcohol problems, pregnancy, and psychiatric conditions.
“Mature minor” statutes vary from state to state but allow a minor (usually between 14 and 18 years of age) to give informed consent when he or she understands the risks and benefits of a treatment. This generally applies to treatments that do not pose a serious risk.
A parent with sole custody of a child has the legal right to provide consent for medical treatment. Obtain this permission prior to treatment, whenever possible. On a practical basis, however, if a medical necessity exists and a delay could be deleterious, the emergency physician (EP) may need to assume that a parent in possession of a child has the authority to provide consent.
REFUSAL OF CONSENT AND PATIENTS LEAVING AGAINST MEDICAL ADVICE
On general principle, adult patients may ethically and legally refuse treatment totally or in part. A patient does not require a global decision-making ability to refuse treatment, but rather enough for a given situation, that is, a relative decision-making capacity. Clinical circumstances require the use of the term capacity, whereas competence is a legal term, which can only be determined by a court ruling.
Multiple components are required for a decision- making capacity. These include understanding the options, awareness of the consequences of each option, and appreciation of the costs and benefits of the options in relation to relatively stable values and preferences.
Informed refusal should be carefully documented on the chart of a patient who leaves AMA. The following five issues can be problematic and should be addressed in the chart:
a. Capacity—Document the patient’s mental status. Ideally, a patient should be awake and alert, able to carry on a reasonable conversation, and possess the mental ability to discuss the problem and act with self-interest.
b. Discussion—Use and document clear terms, which a layperson can understand; avoid euphemisms and technical jargon. If death is a possibility, say so.
c. Offer of alternative treatment—Document whether or not alternative treatments are available and are offered.
d. Family involvement—Document efforts to involve family or friends in the decision process. If the patient forbids family involvement, document this accordingly.
e. Patient’s signature—The physician is not legally protected if the patient signs a standard AMA form devoid of the other four elements. However, if a patient refuses to sign after an appropriate informed discussion, simply document the refusal to sign.
RESUSCITATION AND DO-NOT-RESUSCITATE ORDERS
Current standards suggest that when the possibility exists that the brain is viable and there are no compelling medical or legal reasons to act otherwise, resuscitation should be initiated.
The current medical standard used to terminate resuscitations should be brain death or cardiovascular unresponsiveness. This principle is well founded in the standard references and well supported ethically.
Medically and ethically, it is important to remember that there is no obligation to deliver treatment that is futile. When a person with a terminal illness is expected to die within a few hours or days, further aggressive diagnostic or therapeutic care would not benefit the patient and would be considered medically futile (and thus an ethical reason to withhold or cease resuscitation).
It is prudent to stabilize the patient first and then seek further clarification of his or her wishes, either from the patient directly or with the family or physician. Appropriate, ethical reasons to withhold or cease resuscitation include irreversible cessation of cardiac function, brain death, competent patient refusal, or an advance directive such as “do not resuscitate” (DNR).
Even with a valid DNR order, conditions such as pain, infection, dehydration, and respiratory difficulty should be addressed. A patient with a DNR deserves respectful and compassionate care, which can maximize comfort and possibly improve the remaining quality of life.
PHYSICIAN TELEPHONE ADVICE
Even brief, seemingly straightforward advice is potentially a high-risk action when given over the telephone. A legally binding relationship (duty—the first element of a negligence tort) is established once advice is given. Since one cannot see the patient and further information may not be forthcoming, an accurate assessment truly cannot be made.
It is acceptable, however, to give basic first aid advice if one includes a rejoinder to come immediately to the emergency department.
Medical facilities with formal telephone advise programs should use specific guidelines, track outcomes, provide close follow-up, and complete the calls with a patient reminder to come to the emergency department.
THE EMERGENCY MEDICAL TREATMENT AND AC TIVE LABOR ACT (EMTALA)
In 1986 Congress enacted the Comprehensive Omnibus Budget Reconciliation Act (COBRA) to combat widespread patient-dumping practices. The Emergency Medical Treatment and Active Labor Act (EMTALA) is the section of COBRA that applies to emergency departments.
According to EMTALA regulations, a medically unstable patient can be transferred to another facility only if the transferring physician certifies the transfer is medically necessary and the receiving facility agrees to accept the patient.
A patient with an illness or injury who presents to an emergency department (whose hospital has a Medicare contract) must receive a medical screening examination, regardless of the patient’s ability to pay or insurance coverage.
If the medical screening examination determines that an emergency medical condition exists, the patient must have that condition stabilized. Stabilization should take prior to transfer to another facility, up to the full capacity of that facility.
The patient must understand the risks and benefits, and sign informed consent for the transfer.
EMTALA also applies to patients who are not being transferred, as all ED patients must receive a screening examination and be stabilized according to the standard procedures of the emergency department. The patient’s condition may preclude successful stabilization and failure to stabilize the patient alone is not an EMTALA violation. However, the physician and hospital may be subject to an EMTALA investigation if it can be established that standard procedures including specialty consultation were not implemented in the attempt to stabilize the patient.
EMTALA do’s and don’ts are listed in Table 194-3.
TABLE 194-3 EMTALA Do’s and Don’ts
MEDICAL ETHICS
There are five basic principles that should guide ethi cal decision making in medical practice.
Veracity is telling the truth. It forms the basis of maintaining an open health care provider–patient relationship and of keeping promises.
Patient autonomy is based upon a person’s right and freedom to make an informed choice about what will and will not be done; it also acknowledges the patient’s right to privacy.
Beneficence is the principle of doing good; it involves promoting the well being of others, and responding to those in need.
Nonmaleficence is the principle of “do no harm,” which obliges the physician (or other health care provider) to protect others from danger, pain, and suffering. This concept stems from the Hippocratic Oath as well as other ancient medical traditions.
Justice involves fairness, respect for human equality, and the equitable allocation of scarce resources.
THE HEALTH INSURANCE PORTABILITY AND ACC OUNTABILITY ACT (HIPAA) AND PROTECTED HEALTH INFORMATION
HIPAA is the most important U.S. law that protects the health care privacy and confidentiality of individuals.
This legislation required the establishment of standards for the security, exchange, and integrity of electronic health information, and set rules for basic national privacy standards and fair information practices for health care.
HIPPA allows covered entities to use protected health information (PHI), without authorization, for purposes of treatment, payment, and operations.
Treatment is the provision, management, and coordination of health care and related services, including consultations and referrals.
The payment exclusion allows a health care provider to use PHI to obtain payment or be reimbursed for the care provided to an individual.
Operations include a number of activities, including, but not limited to, quality improvement, employee evaluation and credentialing, auditing programs, and business activity such as planning, development, management, and administration.
An exception to this rule is that psychotherapy notes often require written consent for their use except for treatment, certain legal matters, and the protection of the public from a serious threat.
HIPPA do’s and don’ts are listed in Table 194-4.
TABLE 194-4 HIPAA Do’s and Don’ts
For further reading in Tintinalli’s Emergency Medicine: A Comprehensive Study Guide, 7th ed., see Chapter 298, “Legal Issues in Emergency Medicine,” by Jonathan E. Siff.