General Principles Relating to Consent
Consent, as a legal doctrine, arose out of cases alleging battery by a physician. In these cases, a surgeon performing a surgery for which consent had not been obtained was likened to nonconsensual touching, which is the definition of the tort of battery. Thus, it was immaterial that the patient needed the surgery, that the surgeon had performed the surgery well, or even that the patient would have consented if he or she had been asked. Infringing on the patient's right to decide what would be done with his or her body was the essential wrongdoing. The right to be free from nonconsensual touching is fundamental in US civil and criminal law, in that battery is actionable in both arenas. These cases established that right in medical contexts as well.
Subsequent case law has extended this doctrine from simple consent, agreeing to a procedure despite no discussion of risks or alternative treatments, to the modern concept of informed consent, which requires physicians to give patients adequate information about proposed treatments.
Doctrine of Informed Consent
Under the modern doctrine of informed consent, a physician should discuss with the patient the following elements: the patient's diagnosis, the nature and purpose of the proposed treatment, the risks and expected outcomes of the proposed treatment, alternative treatments and their risks, and the consequences of no treatment.
In order to successfully sue for lack of informed consent, a plaintiff must prove that (1) the physician failed to obtain full and informed consent and (2) this failure proximately caused the injury, that is, the patient would not have consented to the procedure had the material risks been disclosed. Regarding the first element, most jurisdictions follow a physician-oriented standard of disclosure. Under this standard, a physician is required to disclose what a reasonable medical practitioner of the same school in the same or similar circumstances would disclose. However, a number of jurisdictions, including New Jersey and Pennsylvania, follow a patient-oriented standard of disclosure. Under this standard, a physician is required to disclose the information that a reasonable person in the patient's situation would consider important in choosing a course of treatment. Reasonable people can disagree about which standard is more appropriate. The physician-oriented standard is sometimes derided as allowing the medical community to specify its own scope of disclosure, which may be out of touch with the needs of the individual patient. By contrast, detractors of the patient-oriented standard point out that it is too prone to misuse by sympathetic juries in cases where inevitably the undisclosed, unusual complication has occurred.
In order to prove the causation element, most jurisdictions require that the plaintiff prove that a reasonable person in the patient's situation would not have consented to the proposed treatment had adequate information been given.
Exceptions to Consent Requirements
Several exceptions to informed consent–disclosure requirements have been consistently recognized throughout the United States. In medical emergencies, when the patient is unconscious or unable to communicate, or when there is no time to obtain informed consent, the physician may provide treatment under the theory of implied consent. In this circumstance, the law presumes that the compelling need for treatment outweighs the need to obtain informed consent. When a patient receives recurrent medical care and thus has prior knowledge of the nature of the ongoing treatment, as well as the material risks and alternatives, then the physician generally need not make duplicative disclosures in order to obtain informed consent. However, if the patient's condition or other circumstances change, the physician should apprise the patient of this change and renew the consent previously obtained.
A patient may expressly waive the right to informed consent by stating that he or she does not wish to be informed about certain information pertaining to the course of treatment. When this occurs, the physician should inquire why the patient does not wish to be informed and should document these reasons in the medical record. If the patient knowingly and intelligently waives this right, and has reasonable justifications for doing so, then nondisclosure will be defensible in court.
The final exception to consent requirements is known as the doctrine of therapeutic privilege. It arises in situations in which the patient is so anxious or fragile that full disclosure might cause serious emotional or physical harm. Circumstances justifying use of this doctrine are exceptionally rare, and physicians asserting this privilege must carefully document their decision making in the medical record. A physician's concern that the patient might forego recommended treatment if adequately apprised of its risks is not a sufficient reason to invoke this doctrine.
Authority to Give Consent
Informed consent obtained after adequate disclosure by the treating physician will be meaningful only if the patient has the authority to give consent. Under US law, all adults are presumed to be competent to make decisions about their treatment and thus to have the authority to give or withhold consent. However, a physician should question this presumption of competence when the patient's mental capacity is altered due to physical or mental illness, intoxication, or diminished consciousness due to injury or other causes.
Competence, broadly defined, is the ability to make decisions. The word competence, however, has many legal and medical connotations, so in general it is better to use the term capacity when discussing a patient's ability to understand and make decisions with regard to medical situations that confront patients. Most patients have the capacity to understand their medical condition and the proposed treatments in a general way and can appreciate the consequences of accepting or refusing the proposed treatment. If a patient lacks the requisite mental capacity to make informed decisions, the physician should seek consent from a qualified surrogate decision-maker. If the patient has previously been determined to lack this capacity, he or she will likely have an appointed guardian with the responsibility to make medical decisions. If the patient has an advance directive such as a durable power of attorney or a living will, this document will identify the surrogate decision-maker. If no such documentation exists, most states have enacted statutes that identify a hierarchy of family members who can give or withhold consent for a patient who becomes incompetent acutely. Given the circumstances in most EDs, when treating a patient who lacks the capacity to receive informed consent, a physician should always involve a patient's closest family members in the decision-making process. Further, a physician should carefully document in the medical record evidence justifying the determination of a patient's lack of capacity and his or her attempts to obtain consent from a qualified surrogate decision-maker.
Intoxicated patients are frequent ED patients and present a special risk to the ED physicians. Their altered mental status may mask serious injuries that are too easily attributed to their intoxication, and the treating physician must exercise a heightened suspicion while evaluating such patients for injuries. Depending on the degree of their intoxication, patients may be so altered that they may not possess the capacity to consent to or refuse treatment. In this situation an emergency physician is required to obtain consent from a qualified surrogate decision-maker, as discussed above. In general, the emergency physician should assume that an intoxicated patient does not have the capacity to consent and that the patient may have a serious injury or illness, and should therefore perform a complete medical screening evaluation. A liberal restraint policy may be necessary to allow for proper evaluation. However, once the patient demonstrates mental capacity and there is no apparent life threat, the physician has no legal right to detain the patient any longer, regardless of whether the patient's blood alcohol level is at or below the state legal limit for intoxication.
Patients who have been arrested and are on their way to jail, or persons already in jail, are often brought to the ED for evaluation and possibly treatment. Impending or actual incarceration does not alter their rights concerning consent for treatment. Sufficient consent for examination and treatment must be obtained.
In general, a minor does not have legal competence, and the consent of a minor's parent or legal guardian must be obtained before treatment can be rendered. Of course, several exceptions exist. In a medical emergency, consent will be implied by law. Most states allow an emancipated minor to consent to his or her medical care. An emancipated minor is a minor who is or has been married, who lives alone and is financially independent, or who has children of his or her own. Most states also allow minors to give consent for treatment of specific conditions such as pregnancy, sexually transmitted diseases, or chemical dependency. Consent laws vary considerably from state to state, and emergency physicians should become familiar with their own states' consent laws.
Patient Refusal to Consent
Any competent adult patient may refuse to consent to a proposed treatment, even if that treatment is necessary to save the patient's life. The guiding principle being observed is patient autonomy: all competent patients have the right to decide what will be done with their bodies.
If a patient decides to leave the ED without treatment and against medical advice, the risks of doing so should be explained and the patient should be asked to sign a form releasing the hospital and ED staff from liability. If the patient refuses to sign this form, this fact and the circumstances of the patient's departure should be documented in the medical record.
If a patient is incompetent, he or she does not have the right to refuse treatment because such a patient is not deemed to have the capacity to make an informed decision. In this circumstance, the physician has an obligation to protect the patient, restrain the patient if necessary, and render appropriate care. This delicate balancing of patient autonomy and physician authority requires a sort of cost–benefit analysis on the physician's part in each case. An intoxicated patient refusing to consent to suturing of a small laceration might be afforded greater autonomy than a previously healthy person who refuses treatment of an acute myocardial infarction. Although a physician faced with the second scenario cannot simply override a competent patient's wishes, the physician should investigate more fully the patient's understanding of his or her condition, the proposed treatment, and the likely consequences of the decision.
With these principles in mind, a few special cases should be noted. A psychiatric patient should be evaluated to determine if he or she is a threat to self or others. If so, the patient should be held for further psychiatric evaluation and therapy. However, the psychotic state itself does not necessarily render the patient incompetent. A psychiatric patient's right to refuse psychotropic medications has generally been upheld by the courts. If available, the safest alternative for the emergency physician is to consult a psychiatrist to conduct this evaluation.
Narcotics users who present to the ED in respiratory arrest and receive naloxone may become intensely uncomfortable due to the effects of narcotic reversal and acute withdrawal. They may desire to leave the ED to seek more narcotics. However, naloxone has a shorter half-life than heroin and other narcotics, and the patient remains at significant risk for recurrent respiratory arrest. At a minimum, such patients should be held in the ED for at least one half-life of naloxone.
ED personnel should use reasonable therapeutic restraint to evaluate and provide treatment to violent patients, because there is a correlation between violence and acute organic brain syndrome. If restraining such a patient places the staff at risk of harm, the patient should be allowed to “escape” and the police should be notified that the patient may be a threat to self or others. Circumstances of the incident should be carefully documented in the medical record.
The right of Jehovah's Witness patients to refuse receiving blood products is a troublesome area for physicians. Courts have generally upheld this right for competent adults, but a number of exceptions exist, depending on whether the state can demonstrate a compelling or overriding interest for authorizing the transfusion. Transfusions have been authorized when the patient has dependents or is pregnant or when there is a reasonable doubt about the strength of the patient's convictions. Courts typically do not allow a Jehovah's Witness parent to refuse treatment for a minor. The safest course of action for a physician facing this dilemma is to contact hospital staff or legal counsel for guidance.
Finally, although parents' decisions about their child's care are typically respected, they should not be allowed to place the child at risk of serious harm. Courts have repeatedly held, under the doctrine of parens patriae (the state's paternalistic interest in children), that a parent does not have the right to refuse lifesaving treatment for a child, even on religious grounds. If faced with such a situation, the physician should contact hospital counsel and take temporary protective custody of the child based on child neglect. The physician may be hesitant to take custody of the child, but it should not be for fear of liability; the physician is protected from civil and criminal liability under child abuse and neglect statutes. In the past 30 years, no case has been reported in which a parent has successfully sued a physician for providing nonnegligent care to a child without parental consent.
Consent for Blood Alcohol Samples
Many states have enacted statutes regarding driving under the influence; these statutes define intoxication on the basis of blood alcohol concentration. They typically specify that a person arrested under the statute is deemed to have consented to blood tests for the purpose of determining the blood alcohol level. If the patient does not allow medical personnel to obtain the sample, such refusal may result in summary suspension of the patient's driver's license. These statutes usually provide physicians with civil liability protection for use of the results of these samples in legal proceedings. In some states, this implied consent extends only to the testing of urine and breath samples but not to blood samples. The provisions of these statutes vary from state to state, and emergency physicians should become familiar with the laws of the states in which they practice.
Patients with psychiatric disorders or altered mental status for other reasons (ie, drugs, alcohol, organic dysfunction) are often unable to test and evaluate external reality and may experience delusions, hallucinations, and personality disintegration (see also Chapter 49). Such patients present special legal hazards with regard to the legal principles of assault and battery as well as false imprisonment. The key question in deciding when and to what degree physical restraint can be used on a patient with mental illness is whether the patient is likely to cause self-harm or harm to others. The ED staff may use appropriate and reasonable efforts, including the use of restraints, to protect the patient from self-harm and from harming others. If the staff fails to use necessary, reasonable restraints, it risks incurring liability to innocent third parties injured by the patient and may incur liability to the patient if the patient causes self-harm. By contrast, unnecessary or excessive force may result in liability for injuries sustained by the patient. What constitutes excessive force depends on the circumstances of each case.
Hospitals are required to have specific restraint policies and forms. ED staff must be familiar with these policies and document their compliance on the appropriate forms. The ED record should contain an objective and thorough documentation of the patient's behavior and mental status, the physician's reason for restraints, and the method and duration of restraint.
The problem may be complicated when an alert and apparently competent patient protests against being held in the ED for further assessment and demands to leave before his or her evaluation is complete. The ED staff may be held liable for false imprisonment if such a patient is later determined not to be a danger to self or others. Actions for false imprisonment may arise when a person is unlawfully deprived of personal liberty by another person without giving consent and is aware of such deprivation, and when no defense of privilege applies. Although the potential for liability exists in such cases, the incidence of claims is low.
Conversely, ED staff may face liability for failure to hold and further assess a mentally unstable person if the patient is released and then causes self-harm or harms others. Physicians who discharged psychiatric patients who subsequently committed suicide have been found liable for wrongful death of these patients in lawsuits brought by the patients' survivors, if the juries concluded that the decisions to discharge their patients were made in a negligent manner. This scenario exposes the ED staff to a greater risk of litigation than the risk of false imprisonment.
Maintaining the patient in the ED for a reasonable period of time for examination and evaluation by a psychiatric health professional may be the most prudent course of action. If a psychiatrist or other mental health professional is not available, the ED physician must decide whether to discharge the patient or start procedures for involuntary commitment to a psychiatric facility. Laws vary greatly with regard to emergency involuntary commitments. The ED staff should be familiar with the laws in their local jurisdiction. As a general principle, the decision to restrain a mentally ill patient for a thorough evaluation is more easily defended than the decision to allow a potentially dangerous patient to be discharged. The key is thorough documentation.
Abandonment is the unilateral termination of the physician–patient relationship by the physician without the patient's consent and without giving the patient sufficient opportunity to secure the services of another competent physician. Although much ED care is episodic in nature and does not involve follow-up treatment, the ED physician and staff still have a responsibility to provide appropriate discharge instructions.
ED physicians may be liable for negligent disposition of the patient if they do not give follow-up care instructions appropriate for the patient's condition. This principle also requires the translation of follow-up instructions for patients who do not read English, if the ED is in an area where it would be reasonable to require the presence of translating personnel in the ED. The area of follow-up instructions is also one of concern to the Joint Commission. When frequently required in an emergency care area, a means of communications should be available in the language of the predominant population groups served by the ED.
EDs are designed to provide episodic care for emergency problems. Patients discharged from the ED frequently require referral for follow-up care. Because of a shortage of primary care physicians and certain specialists, and frequently a lack of financial resources by ED patients, arranging appropriate follow-up care can be difficult. Generally, the ED physician should refer the discharged patient to a physician available from the on-call list. When follow-up becomes unavailable for whatever reason, the patient should be instructed to return to the ED.
Discharge instruction sheets should be provided to every ED patient and should be signed by the patient or guardian. The instruction sheets should be as specific as possible and appropriate for the discharge diagnosis. The patient's signatures on the instruction sheet should certify that he or she has received the form and has been given oral instructions as indicated on the sheet. A copy of the signed instruction sheet should be retained in the patient's medical record.
Patients may also allege abandonment or negligence via telephone consultation. An example is the patient who is discharged from the ED, experiences a reoccurrence of symptoms, calls the ED, and is told not to worry about it until morning. If the patient's condition worsens, or if the patient receives any advice subsequently deemed to be inappropriate, the ED staff may be liable for negligence and abandonment. As a general rule, although it is reasonable to answer basic questions, the ED staff should not provide diagnoses or treatment to patients over the telephone.
All governments have statutes and administrative regulations that require reporting of certain events by ED physicians and staff. Reportable events include child or elder abuse, rape, gunshot and stab wounds, assaults, or other suspicious injuries; certain communicable disease including most sexually transmitted diseases, hepatitis, tuberculosis, and HIV infection; animal bites; and the receipt of patients who are dead on arrival (DOA). Emergency physicians and staff should know which events are reportable and the procedure for reporting them in the area in which they practice, because these rules vary by state and county.
All US jurisdictions and many other countries have regulations or statutes requiring the reporting of actual or suspected child abuse. Some of the statutes allow the reporter to exercise discretion in deciding whether to report, whereas others require reporting of all cases under penalty of fine or imprisonment.
Many states' reporting statutes grant immunity from civil liability (eg, immunity from charges of slander) to the reporting party. These immunity provisions were intended to make the public (including physicians and nurses) more inclined to report suspected child abuse cases by eliminating the fear of being sued by the parents. In some states, immunity for reporting and for participating in subsequent judicial proceedings is provided without any express qualification. Other states provide immunity for actions taken “in good faith” or “without malice.” Generally, no immunity provision will protect ED staff members who broadcast to third parties with no official status or right to know that the parents are child abusers.
In states lacking statutes granting immunity, the emergency physician and, more important, the child victim will be better off if suspicion of child abuse is reported to the appropriate agency. Failure to report a reasonably suspected case of child abuse may result in criminal penalties for failure to report according to state law and may also result in civil liability for negligence in failing to report.
All states have procedures for handling sexual assault investigations. ED staff must recognize that rape is a legal conclusion and not a medical diagnosis.
Protocols for management of rape victims are given in Chapter 38.
Most jurisdictions require that injuries from acts of violence, such as gunshot and stab wounds, or any alleged assaults be reported to the appropriate reporting agency. Reports of violent wounds of any sort should generally be reported to the local police.
Public health laws generally require the reporting of certain communicable diseases, including sexually transmitted infections, HIV infection, infectious encephalitis, food poisoning, hepatitis, meningococcal infections, plague, bioterrorism, anthrax, and many others. Both documented and suspected cases should be reported. Lists of reportable diseases vary by locale and should be reviewed by the emergency physician.
In general, although all medical personnel who are aware of the patient's diagnosis (including the attending physician, nurses, and laboratory personnel) are obligated to report cases of communicable disease, the hospital should develop a specific mechanism to ensure compliance with local laws. Reporting in the United States is generally accomplished by means of a short written form (the Confidential Morbidity Report card). With certain virulent diseases (eg, plague, botulism, anthrax), reporting by telephone or e-mail may be required for obvious reasons. In most states, failure to report is a misdemeanor punishable by fines or brief imprisonment. The physician who fails to notify the health department when he or she diagnoses a reportable event faces a risk of license revocation or civil suit if secondary cases or other damages result from the failure to report. The need of the health department to know of these conditions transcends the absolute confidentiality of the physician–patient relationship. The physician should discuss with the patient the need for reporting to preserve their therapeutic relationship.
Individuals other than those in the health department may be notified of the patient's diagnosis directly by the physician if there is an immediate risk to the patient's health. This notification may also be made by the health department. However, individuals not at immediate risk of contracting infection from the patient (this usually includes employers, fellow employees, landlords, and casual acquaintances) should not be informed of the patient's diagnosis by the physician. To do so could leave the physician at risk of civil liability for breach of confidentiality. The patient about whom such information is disclosed may bring a lawsuit alleging wrongful disclosure of private information. Also, the physician risks liability for defamation, which is defined broadly as that which tends to injure the plaintiff's reputation or to diminish the esteem or respect in which the plaintiff is held.
Reporting laws in the United States usually require that the emergency physician and staff report an animal bite to the appropriate local health official within a specified number of hours after the bite has occurred. Such reporting is an obvious safeguard to protect the public from vicious animals and from the spread of animal-borne infections, especially rabies.
See Chapter 30 for management of bites.
In many states, epilepsy and other neurologic impairments, especially those resulting in episodic loss of consciousness, are reportable to the agency responsible for motor vehicle licensing. The time period after a seizure during which a patient may not drive varies widely among the states but is usually a period of at least 3–6 months without a recurrent seizure. It is also important to provide appropriate discharge instructions to patients so that they will avoid potentially dangerous activities.
All states in the United States require that receipt of a body DOA at the ED be reported to the coroner or medical examiner for possible investigation and for assessment of the need for postmortem examination. In such cases, the emergency physician and staff should do nothing to the corpse that would interfere with the gathering of evidence by the coroner or medical examiner. For example, the ED staff should not attempt to obtain blood and tissue for laboratory studies; all specimens in such cases should be obtained by the coroner or medical examiner. Similarly, the corpse should not be used to practice cardiopulmonary resuscitation, endotracheal intubation, or other procedures.
The importance of medical records cannot be overstated. The medical record is both a legal document and a means of recording the cause of a patient's illness. It is subject to review by hospital administration, the medical staff including consulting or subsequent treating physicians, third-party payers, state and national accreditation agencies, patients, and occasionally attorneys.
Medical records serve many purposes, including the following:
- Recording information important to patient care now and in the future;
- Delineating level of care for billing;
- Providing medicolegal documentation to support compliance with the standard of care.
When crucial facts such as vital signs or the results of specific examinations were not recorded in the patient's medical records, courts and juries may conclude that they were not done. Although the medical record is a summary of the patient's visit rather than a verbatim account of everything that transpired, it behooves the emergency physician and staff to document carefully with specific attention to pertinent negatives and positives for the particular presenting complaint. Invariably, should an unfavorable outcome or litigation occur, the physician would wish he or she had provided better documentation of care.
The Joint Commission requires that a medical record be established and maintained for every ED patient. The record must contain the following elements:
- Patient identification
- Time and means of arrival
- Appropriate vital signs
- Documentation of pertinent history and physical findings
- Emergency care given prior to patient arrival
- Diagnostic and therapeutic orders
- Clinical observations, including the results of treatment
- Reports of procedures, tests, and results
- Conclusions reached on completion of examination and treatment
- Diagnostic impression
- Final disposition
- Patient condition on discharge or transfer
- Documentation of discharge instructions
Other important items include the following:
- List of allergies
- Current medication
- Possibility of pregnancy, if germane
- Tetanus immunization history, if germane
- Name of patient's private physician
- Documentation of prescriptions given to the patient
- Patient's signature acknowledging receipt and understanding of discharge instructions
- Documentation of a medical screening examination
- Documentation of leaving against medical advice
The information contained in the patient's medical record is confidential and should not be disclosed to the police, press, or other parties without the patient's written consent. Exceptions arise when the patient's medical record is sought by a valid subpoena or court order. The emergency physician can be forced to release confidential information by a court order requiring such release.
Medical records of patients seen in the ED because of drug or alcohol abuse must be handled with particular attention to confidentiality to avoid litigation for defamation. All descriptions of the patient's clinical condition must be stated in an objective manner. Extraneous subjective remarks betraying the physician's or nurse's attitudes about the patient have no place in the medical record.
Emergency Physician and Medical Staff Interaction
The practice of hospital-based emergency medicine involves constant interaction with many members of the medical staff as well as the hospital administration and governing body. The emergency physicians practice in something of a fish bowl, where their clinical skills are under constant prospective and retrospective scrutiny by the entire medical staff. As a result, emergency physicians and other staff must work in a highly charged professional environment.
A potential problem for the ED is created when a patient is instructed by a medical staff physician to go to the ED for treatment and the physician then either fails to meet the patient and keep the appointment or fails to notify the ED staff of the patient's imminent arrival. The emergency physician must decide whether to exercise clinical control over the patient and institute diagnosis and treatment. If the patient is a nonemergency patient and wishes to be seen only by the private physician, there is no difficulty for the ED staff. However, when the patient's clinical problem requires immediate attention, the emergency physician may be sued for negligence if necessary emergency care is not given despite the wishes of the private physician. As a general rule, when in doubt, it is better to err on the side of treatment, assuming that the patient has consented to treatment in the first place. An effort should be made to contact the private physician under these circumstances, but administrative considerations should never interfere with appropriate patient care.
Another difficulty for the emergency physician is dealing with medical staff physicians' requests that the emergency physician write admission orders for patients admitted through the ED. The responsibility for writing admission orders should rest with the medical staff physician to whose service the patient has been admitted. Having the emergency physician write admission orders as a convenience for the medical staff still occurs at many hospitals, but it is a policy that should be discouraged. It blurs the transfer-of-care responsibility, exposes the emergency physician to unnecessary liability, and may delay prompt examination by the admitting physician.
Once a patient has been admitted through the ED, hospital bylaws usually specify how soon the patient must be seen by the admitting physician. If the patient's condition is serious, the patient should be seen as soon as possible after admission. All admitted patients should be seen within a reasonable time depending on their clinical condition. To ensure that this happens, the emergency physician should accurately convey the patient's clinical condition to the admitting physician. If uncertainty exists, the admitting physician should be asked to examine the patient.
Another area of potential conflict between the hospital staff and the emergency physician is the area of on-call specialty consultation. EMTALA requires hospitals to provide a list of on-call physicians who will respond to requests from emergency physicians for specialty consults and follow-up care. If emergency specialty consultation is requested and the on-call specialist fails to respond, the emergency physician may transfer the patient by certifying that the benefit of transfer outweighs the risks. Care must be taken to document requests for on-call consultation in a timely, accurate, and objective manner.
Problems such as these involving the ED and medical staff are of a delicate political nature. The ED and medical staff must keep lines of communication open so that these difficult areas can be discussed dispassionately. If this open communication does not exist, the inevitable result is strained personal and professional relations, which can cause a lowered standard of patient care and create a climate of confusion that engenders litigation.
Emergency medicine physicians may be asked to provide expert witness testimony in medical malpractice cases. Regardless of how one feels about the current legal process for resolving malpractice suits, fair, accurate, and impartial opinions by emergency physicians familiar with the standard of care are essential. Serving as an expert witness can be an intimidating experience. If opposing counsel is unable to rebut the opposing expert's opinions, they often attempt to discredit the expert.
The American College of Emergency Physicians has issued expert witness guidelines for the specialty of emergency medicine (policy stated September 1995), stated as follows:
Expert witnesses are called on to assess the standard of care for emergency physicians in matters of alleged medical malpractice and peer review. Expert witnesses in the specialty of emergency medicine should meet the following criteria:
- Be certified by a recognized certifying body in emergency medicine;
- Be in the active clinical practice of emergency medicine for three years immediately before the date of the incident;
- Be currently licensed in a state, territory, or area constituting legal jurisdiction of the United States as a doctor of medicine or osteopathic medicine;
- Abide by the following guidelines for an expert witness:
- – The expert witness should possess current experience and ongoing knowledge in the area in which he or she is asked to testify.
- – The expert witness should be willing to submit the transcripts of depositions and testimony to peer review.
- – Pursuant to Opinion 9.07 of the Current Opinions of the American Medical Association's Council on Ethical and Judicial Affairs, the expert witness should not testify on a contingency-fee basis or offer expert witness services on a contingency-fee basis through an agent, representative, or other third party.
- – The expert witness should not provide expert medical testimony that is false or without medical foundation. The key to this process is a thorough review of available and appropriate medical records and literature concerning the case being examined. The expert's opinion after this process is completed should reflect the state of medical knowledge at the time of the incident.
- – The expert witness should review the medical facts in a thorough, fair, and impartial manner and should not exclude any relevant information to create a view favoring the plaintiff or the defendant.
- – Expert witnesses are chosen on the basis of their experience in the area in which they are providing testimony and not solely on the basis of offices or positions held in medical specialty societies, unless such positions are material to the witness' expertise. Emergency physicians should not engage in advertising or solicit employment as expert witness where such advertising or solicitation contains representations about the physician's qualifications, experience, or background that are false or deceptive.
In 2003, the American College of Emergency Physicians announced the availability of an “Expert Witness Re-Affirmation Statement” that can be used by members testifying in physician liability cases.
The statement was developed by ACEP's Professional Liability Task Force in response to members' concerns about untruthful and unethical testimony. The statement was modeled after a similar document utilized by the American College of Obstetricians and Gynecologists.
The ACEP statement calls for an expert witness to affirm that he or she has relevant expertise and will provide true and impartial testimony based on generally accepted standards. ACEP members who testify as expert witnesses are professionally obligated to adhere to the principles enunciated in the reaffirmation.
When joining the College, members agree to abide by ACEP's Code of Ethics for Emergency Physicians. That document includes a policy on expert witness testimony. The reaffirmation confirms their willingness to abide by that policy.
When providing expert witness testimony, ACEP recommends that members sign a copy of the reaffirmation statement and present it to an attorney who can introduce it in direct examination of the member and in direct or cross-examination of other witnesses designated as experts.
The statement is available at http://www.acep.org/download.cfm?resource=1024.
National Practitioner Data Bank
The Health Care Quality Improvement Act (HCQIA) was passed by Congress in 1986 and called for the establishment of the National Practitioner Data Bank for Advice Information on Physicians and Other Health Care Providers (NPDB). Its purpose is to collect data on medical malpractice payments. All medical malpractice payments must be reported to the NPDB. What effect HCQIA and the NPDB will have on health care and the availability of insurance is yet to be determined.
Harvesting of Organs for Transplantation
Emergency physicians can be expected to be confronted with the issue of organ or tissue donation. Hospitals should have specific policies in place that address the issue and emergency staff should be familiar with them. Most states have statutes that require notification of the organ donation association in the event of any death that meets criteria for possible organ or tissue donation.
It is possible that future legislation would include some type of tort reform, as a means of cost containment, but that has not been part of the bills under current consideration. Fear of liability clearly drives physicians to order extra medical treatments or diagnostic tests to avoid liability. The true cost of defensive medicine continues to be hotly debated, but the US Department of Health and Human Services estimate that these unnecessary expenditures add between $60 and $108 billion to the total cost of health care each year. Given the limited resources to pay the enormous costs associated with health care, it would seem to reason that any meaningful comprehensive health care reform initiatives will need to include tort reform as well.
American College of Emergency Physicians Policy Statement: Expert Witness Guidelines for the Specialty of Emergency Medicine. American College of Emergency Physicians, Policy #400114, Approved August 2000.
American Medical Association Website: www.ama-assn.org/ama1/pub/upload/mm/399/mlr tp.pdf.
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