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Legal and Ethical Aspects of Pediatric Emergency Medicine


Legal and Ethical Aspects of Pediatric Emergency Medicine Carmen M. Lebr n MD FAAP Emergency Department San Jorge Children s Hospital San Juan, Puerto Rico – PowerPoint PPT presentation

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Title: Legal and Ethical Aspects of Pediatric Emergency Medicine

Legal and Ethical Aspects of Pediatric Emergency
  • Carmen M. Lebrón MD FAAP
  • Emergency Department
  • San Jorge Childrens Hospital
  • San Juan, Puerto Rico

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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
  • Minor
  • An individual under the age of majority
  • Defined as age 18 in all but 4 states¹ AND Puerto
  • 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
  • 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
  • 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
  • 1.Treloar DJ, Peterson E, Randall J, et al. Use
    of emergency services by unaccompanied minors.
  • Ann Emerg Med 199120297301.

  • 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
  • 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
  • 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

  • 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

  • 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 20031117036
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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
Refusal of care
  • Competent minor/parents refusal of care can be
    addressed asking 3 questions
  • Is the treatment necessary in the foreseeable
  • 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 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

Doctors for Medical Liability Reform. Protect
Patients Now! action center. Available at c.8oIDJLNnHIE/b.1
090567/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

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
  • 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
  • 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
  • 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
  • No call to attending at home who was the on-call
  • 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
  • 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
  • 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
  • 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
  • Defense Properly applied TAC does not cause
  • Veredict for the defense
  • Must have causation to have negligence

Most Prevalent Conditions in Pediatric
Malpractice ClaimsCaused by Error in Diagnosis
  • 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
Pediatric lawsuits arising in an emergency
  • 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
How do we avoid malpractice suits?

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
  • ED doc ignored protocol and used standard doses
  • Child continued seizing, herniated
  • Case settled for 750,000

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

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
  • 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 chart
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

Risk Management Techniques-the chart
  • Careful and extensive documentation is critical
    with patients likely to sustain long-term
  • Read the nurses notes
  • Specifically address discrepancies in your note
  • Verbal instructions should be simple, clear, and
  • 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.
  • 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
  • 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
  • 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 individuals 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 hospitals main
    campus facility

  • Hospital obligations
  • A MSE will be provided to any individual who
    comes and requests it to determine if an EMC
  • 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

  • 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 hospitals 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
  • 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
  • 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
  • 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?
  • 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
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
  • Must be met for most physician-patient
  • 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

  • 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
  • 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

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.