Chapter 150: Medicolegal Considerations

High-Yield Facts

• The Emergency Medical Treatment and Labor Act (EMTALA) mandates a screening examination for all patients presenting to an ED—this essentially obviates the need for consent in a minor unaccompanied by a parent or guardian.

• The Health Insurance Portability and Accountability Act (HIPAA) mandates that all possible care be taken to ensure the confidentiality of a patient's medical records.

• Many states have “emancipated minor” statutes that permit adolescents to make their own healthcare decisions.

• When refusal of care becomes an issue, the “best interest” of the minor is the priority.

• Disclosure of medical errors is becoming increasingly common and in the near future may become the law in many states.

Introduction

Legal issues are particularly important in the ED. The rights of the patient, the physician, the hospital, and the public are intertwined in complex relationships.¹ Children have unique and sometimes complicated medical conditions. Issues of consent for minors and adolescents, and problems such as child abuse or neglect, pose difficult medical and legal questions. Physicians and others who care for acutely ill and injured children must be aware of relevant laws to manage young patients. They must also recognize the diagnoses that pose the highest risk for litigation when caring for children.^2–4

Medical Malpractice and the ED

A recent study showed that about 7.5% of emergency physicians (EPs) are sued annually.⁵ EPs are at special risk because they must rapidly deliver complex care to patients with high acuity illness.⁶ EPs rarely have an ongoing relationship with their patients. They must quickly attempt to obtain a history, perform a physical examination, make a diagnosis, and institute therapy. Patient handoffs and communication breakdowns may contribute to errors and malpractice lawsuits.^7,8 Overcrowding also adds legal risk to the ED environment.^9,10 Trainees who are not properly supervised in the ED may contribute to medical errors and malpractice.⁸ Privacy may be limited in the ED, and overworked staff could be impolite at times. Patients may view their encounter with the physician as impersonal if the busy clinician hurries off to see another patient. Patients often become frustrated by long waiting times.¹¹

Most malpractice lawsuits result in settlements out of court, and some are dropped completely. Only about 10% of legal cases reach a jury verdict. Still, these legal actions can be very troublesome, emotionally draining,^1,6 and expensive. Between February 1, 2004 and December 31, 2005 there were more than 30,000 malpractice payments made on behalf of practitioners in the United States and these totaled $8.8 billion. Of this, $1.7 billion were paid on behalf of children less than 19 years of age, for just over 4000 claims.¹² In 2011, there were only 9758 malpractice cases involving payments made on behalf of physicians, the lowest since the National Practitioner ...