Emergency department administration, legal matters and quality care

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Chapter 47 Emergency department administration, legal matters and quality care

S. Lesley Forster, Gordian W.O. Fulde, Sally McCarthy

HOW THE LAW AFFECTS THE PRACTICE OF EMERGENCY MEDICINE

(S Lesley Forster)

There have been a number of recent changes in society and in the law which greatly affect the practice of medicine in general, and emergency medicine in particular. Those practising emergency medicine need to be aware of these changes and to ensure that their practice conforms to the legal requirements. In court, ignorance of the law is no excuse.

This chapter also considers ways of decreasing the likelihood of legal action, and what to do if you are sued.

Confidentiality

The overriding ethical maxim in the treatment of patients is that the doctor must keep secret anything he or she hears about the patient. There are, of course, exceptions; for example, where a patient consents to the disclosure of information, or when giving evidence in court.

When faced with requests from police officers for information regarding a patient’s condition, ideally the written consent of the patient should be obtained first. It is the doctor’s duty to ensure that information is given only to those who are entitled to it.

It is accepted that, in some instances, public interest can override a doctor’s duty of confidentiality. If, for example, a patient confides to a doctor an intention to commit a serious criminal offence such as homicide or sexual assault, then it would be in order for the doctor to provide a relevant third party with that information.

There are other circumstances where the situation is not quite so clear, and judgement must be made according to the circumstances at the time as to what constitutes a serious criminal offence. It seems to be fairly well accepted among the medical profession, for example, that a doctor should not notify police of a patient’s involvement in minor criminal activities, such as personal use of illicit drugs or property offences.

Some occasions arise where there is no absolute answer to the problem; for example, if a patient who is known to be involved in drug trafficking presents to the emergency department. In such a case, where doubt may exist, the advice of colleagues, medical administration and, even better, the advice of a medical defence organisation should be sought in order to assist the doctor to make the very serious decision as to whether to override the duty of confidentiality.

For guidance, the St Vincent’s Hospital policy regarding internally concealed drugs is shown in Box 47.1.

Box 47.1 St Vincent’s Hospital policy and procedure for management of patients with internally concealed drugs

These patients may present of their own accord or may be brought in by the police.

Some drugs, e.g. heroin and cocaine, may cause death if leakage occurs. This is much less likely with hashish. Mechanical problems such as obstruction may occur with any ingested packets.

Medical management should proceed as appropriate. Drug screens and other investigations are performed if medically indicated. Abdominal and chest X-rays, CT may be required. Close observation and supportive therapy are indicated. Specific antidotes such as naloxone may be required. Decontamination may be needed if packet rupture and toxicity have occurred (toxicity may occur by diffusion without packet rupture). Glycoprep (or similar) may be used to hasten transit. Laparotomy may be indicated to relieve mechanical obstruction or to urgently remove leaking packets which cannot be otherwise retrieved.

If, in the judgement of the treating doctor, the amount of substance is small, i.e. unlikely to be intended for large-scale trafficking but rather intended for individual use, and the patient was not brought in by the police, then it is not mandatory that the police be contacted. Where large quantities are involved, the following steps should be taken:

• Contact the emergency department director.

• Contact medical administration.

• A decision will then be taken regarding the need to contact police. The police will be contacted where the patient has obviously been involved in drug trafficking.

• Medical management should never be impeded and remains first priority.

• Patients should not be forcibly restrained.

• Consent issues for medical procedures and treatment apply in the same way as with all patients.

• The safety of St Vincent’s Hospital staff should not be compromised.

• Packets recovered are the responsibility of the police, if they are present. If the police are not present, recovered packets should be placed in a signed sealed bag, labelled and locked in the S.8 cupboard (checked in by two registered nurses). A check should be made between shifts to ensure that the seals remain unbroken. This must be documented in the S.8 book and in the patient’s medical record. The packets should then be passed on to the police when they arrive.

• Ensure that the documentation in the medical record is comprehensive and precise, as the history may be called in evidence.

(Reproduced with permission.)

Telephone calls

The decision as to whether information about a patient should be given over the telephone is one that arises frequently in the emergency department.

As a general rule, unless the patient has given consent, specific information regarding any patient should not be given over the telephone where it is impossible to be sure of the identity of the caller.

Relatives of very ill patients should be asked where possible to come to the hospital where any information can be thoughtfully and sympathetically given. As a general rule, the results of tests (e.g. pregnancy, human immunodeficiency virus (HIV), sexually transmitted diseases etc) which have been performed in the department should not be released by phone. The patient should return to the emergency department or receive the results from the local doctor. In this way, mistakes and even medicolegal complications can be avoided.

By phone or mail

• Acute viral hepatitis

• Adverse event following immunisation

• Creutzfeldt-Jakob disease (CJD)

• Variant Creutzfeldt-Jakob disease (vCJD)

• Tuberculosis

∗ Under the Public Health Act 1991 and Regulation, hospital CEOs (or their delegates) are required to notify the following diseases to the local public health unit.

More legal obligations

Blood alcohol

In Australia, as in many countries, the treating doctor in an emergency department must perform a venipuncture and obtain a blood alcohol sample (refer to your own state legislation), basically within 12 hours of an accident, if the patient was on a public road and could have directly contributed to that accident, i.e. pedestrian, driver, skateboarder.

These must be done with supplied police kits. There is also a special kit for public transport accident victims (e.g. passenger in a bus who fell).

Drug testing

At times the police will bring someone for drug testing. Each state has its guidelines and strict conditions, kits, supervision of the passing of urine. At times the test (e.g. DNA sampling) should be taken by the police doctors instead of the emergency department.

Sexual assault forensic tests

Sexual assault forensic tests should be done at sexual assault crisis units with trained staff and protocols.

How do you avoid a law suit?

The usual assumption is that good doctors are not sued. Sadly, this is not true. Good doctors are sued even when they do everything right and, if we are honest, even good doctors have bad days.

In a study, the most common reasons given for beginning a malpractice suit against a doctor were:

• advice from a knowledgeable friend (Comment: be careful what you say about your colleague’s work.)

• anger at being manipulated by medical personnel

• belief that a ‘cover up’ was taking place

• outcome failed to meet expectations

• was not told what was happening.

Think about these reasons carefully—they show that the remedy is in your own hands, but it has very little to do with your medical knowledge.

If you do not want to be sued, treat your patients and their relatives the way you would want to be treated in the same circumstances. Be open and friendly, concerned and, above all, talk to them and tell them what is happening. The attitude of your other staff (nurses, clerks etc) is equally important—if the department is rude and uncommunicative, the hospital and the doctor will be sued.

Make your patients and their relatives feel you value them as people and that you will spend the time and thought needed to make them well. Patients do not expect to be cured, but they do expect that everyone will treat them courteously. (G Stubbs, personal communication)

Consent

There has been a change in the legal definition of informed consent following the Rogers v Whittaker decision. Courts now believe that, in giving informed consent, a patient must be informed of all material risks. A risk becomes ‘material’ if the judge believes that a reasonable person in the patient’s position would be likely to attach significant importance to it in deciding whether or not to have treatment.

As a general rule, emergency doctors who do not plan to perform a patient’s definitive surgical or medical procedure should not accept the responsibility of ‘getting a consent’. The emergency doctor may not even know exactly what the procedure involves, and cannot possibly be aware of all the material risks. In such a situation, it is impossible to obtain an ‘informed consent’ from the patient. However, for any invasive procedure, e.g. lumbar puncture (LP), central line insertion, chest tube, a consent should be obtained if possible and signed by the patient and witness.

Procedural mistakes

As we often hand over patients, take care to avoid doing the wrong test, the wrong procedure on the patient we do not know, e.g. the patient in bed 5 needs a CT or a LP. We should, as is now routine in operating theatres, use the ‘Time out’ routine (see Box 47.2).

Box 47.2 Emergency department pre-procedure ‘Time out’

Immediately prior to the commencement of the procedure, the procedure team MUST STOP activity and verbally confirm:

• Presence of the correct patient and consent.

• The correct site has been marked (if applicable).

• Correct procedure to be undertaken is documented.

• Availability of any special equipment.

Reports and records

Comprehensive records, written when you saw the patient, are the keystone of your defence if you are sued. The better the records, the better is your chance of a successful defence.

It does not matter what you did, if you did not write it down, you did not do it!

Conversely, if you did write it down, you did do it!

Whenever you are asked for a report by the police or by a lawyer acting for a patient, you should immediately make several copies of all the hospital records pertaining to that period. This includes your notes, inpatient notes, test and X-ray results. Do not alter the records; this is the surest way to ensure you will get into trouble.

Read your notes and, for your own information, expand them—explaining them and adding extra information that you remember (it may be years before you get to court, and your memory will decline with time).

When you are asked for a report, make sure that the person asking is entitled and has gone through the correct hospital procedures. Make sure that the patient has signed the relevant release.

Make your report factual, comprehensive and comprehensible and you may avoid going to court.

Remember, you can only report on what you learned first hand. Do not draw conclusions, just report the facts (e.g. you can say, ‘the patient smelt of alcohol’ or ‘was unsteady of gait’, but you cannot say ‘he was drunk’).

Going to court

The important rule in appearances is: talk to a senior colleague before you go, stay calm, pause before you answer, keep it simple. The best answers are ‘yes’ or ‘no’. Do not attempt to expand answers or to explain. Do not ‘second guess’ where the questioner is heading. If you do not understand a question, ask for an explanation.

Do not try to beat the barristers at their own game—you cannot, any more than they can intubate someone.

Do not get angry—if you do, you will look bad and the lawyer has won.

Tell the truth, but say no more than you have to.

Doctors out-of-hours or away from their workplace

The well-publicised law case Woods v Procopis and Anor has potentially radically changed the practice of medicine. While the eventual legal principles will be established in future cases, the implications for emergency doctors include:

• If a doctor in hospital is about to leave at the end of his shift, he has a common law duty to attend to an emergency.

• If a doctor is at a theatre or sports event etc, not as a doctor, and a call is made ‘Is there a doctor here?’, the doctor may or may not have a duty of care towards the patient (we are not discussing moral duty here, just legal duty).

• If a doctor is not working, but is somewhere where he is known to be a doctor (such as a favourite restaurant or an aeroplane seat) or can be identified as a doctor (e.g. by the sticker on his car), then is the doctor under a legal duty of care? The answer is not clear, but probably he does.

The obvious answer is not to let people know you are a doctor, even in simple ways such as when booking airline seats, unless you are prepared to act in a case of emergency.

Duty of care: patients who refuse treatment

The practice of emergency medicine has been based on the principle that it is always desirable to preserve life, and that all individuals want their lives to be preserved.

This tenet is now being challenged. The Northern Territory’s ‘euthanasia law’, for example, demonstrates clearly that there are individuals who do not wish to preserve their lives at all costs. This raises questions for the doctor in an emergency setting, who must balance his own obligation to treat versus the patient’s ‘right’ to decline.

In the situation where a patient who is believed to need life-saving medical intervention refuses treatment, the future legal questions would possibly revolve around the question of the patient’s competence, at that time, to make such a decision. Unless there is previously written and witnessed evidence of a preexisting refusal by the patient, it is necessary for the doctor to be convinced that the patient is capable of making such a momentous decision—the patient’s mind may be clouded by drugs, depression, pain or the nature of his/her illness. While the outcome of a legal challenge would be by no means certain, the truth is that, unless the doctor is absolutely certain and can prove that a patient is mentally competent when refusing life-saving treatment, the doctor should err on the side of active management.

Some Clinical Administration Issues

(Gordian WO Fulde)

The dying or resuscitation patient

• Appoint a main spokesperson or communicator among the relatives.

• Keep them informed, preferably by you; be frank and honest.

• Consider their presence by the bedside.

• Get cavalry—social work, priest, clinician who knows the patient etc.

The deceased patient

• Is it a coroner’s case? See Box 47.3.

• Looking after a grieving family appropriately is a top priority—it is hard, it hurts but it is vital.

Box 47.3 The circumstances which necessitate that a death be notified to the Coroner ^∗

A ‘coroner’s case’ is clearly defined as follows:

1. Sudden death of unknown cause, i.e. unable to write death certificate.

2. Death from a violent or unnatural cause or in suspicious or unusual circumstances.

3. Death within a year and one day of an accident to which the death is or may be attributable.

Note: If the patient is 65 years or more and the accident was attributable to their age, contributed substantially to their death, was in no way suspicious or unusual and was not caused by an act or omission of another person, a death certificate may be written. If, however, the accident occurred in a hospital or nursing home, the death is always a coroner’s case, regardless of a patient’s age.

4. Death of a patient within 24 hours of an anaesthetic, general OR local, administered in the course of a medical, surgical or dental operation or procedure, other than a local anaesthetic administered solely for the purpose of facilitating a procedure of resuscitation from apparent or impending death.

5. Death of a patient who has not been attended by a medical practitioner within the period of 3 months immediately prior to the death.

6. Death in an admission centre, mental hospital, residential centre for handicapped persons or similar facility or while in the custody of a police officer or in other lawful custody.

^∗ If there is any doubt whether or not a death is a coroner’s case, medical administration should be contacted.

Medical certificates

• Are legal documents. Never backdate. Stick to facts you can defend.

• Prescriptions—you must know the patient medically.

• Be careful: do not leave prescription pads lying around.

• Again, if in doubt, ask—look it up.

Insurance

As an employee of the hospital, technically you are covered at hospital.

But you are not covered for:

• professional matters, conduct

• informal consultations, opinions e.g. given to your neighbours

• technically, cross-suits initiated by the ‘hospital’ against you as an individual.

Therefore, it is advisable to have even minimal indemnity cover.

Appearance

In the first instance, it is not about you—rather, that you do not offend the patient, i.e. keep it neutral and tidy—no radical message t-shirts. (You can always cover your clothes with a hospital gown when on clinical duties.)

Media

You are not permitted to talk to the media or represent the hospital unless given permission by hospital administration. Media can be curly—beware!

Complaints

Will always occur, may even involve you, are vital to running and improving a good service.

Treat each complaint:

• Seriously and empathetically.

• Do not judge until you have all the facts.

• Respond ASAP (even a phone call from you on receipt may solve the issue but will definitely decrease the aggro).

• Be constructive, do not be punitive, or play the blame game.

• At least, generically admit to issues, problems etc.

• Notify and check with administration before any written response.

Quality, key performance indicators (KPIs), adverse events etc are a part of life—use them to help your department:

• Reflect workload, problems.

• Essential to have, to bargain for resources—or defend them!

• Often show where to focus for improvement.

• Never perfect—ensure data going out of your department makes sense, e.g. write a briefing note or interpretation with the data.

Threats to resources

Staff, budget etc—it is all about money!

Do not explode or take to drink—even if it is the most stupid thing imaginable!

• REGISTER YOUR OBJECTION IN WRITING.

• Gather data—why are they doing this? Who is driving it?

• Rally support, especially from top management (go and talk to them—not only email).

• Create a multiprong attack—enlist nursing etc.

• Offer an alternative solution to the problem.

• Be prepared to lose and win.

QUALITY IN EMERGENCY

(Sally McCarthy)

What is quality?

Clinical quality

Much of the discussion concerning quality in health has arisen from reports such as the Quality in Australian Healthcare Study (1995) and similar international studies, which found unacceptably high rates of adverse events in hospitalised patients, resulting in significant morbidity and mortality. Subsequent attention has been focused on clinical quality, with one definition of quality in health being: doing the right thing, the first time, in the right way, and at the right time. Clinical care and services must be safe, effective, appropriate, customer-focused, accessible and efficient.

Customer-defined quality

More broadly, quality is defined with reference to the customer: as the difference between what a customer wants from the emergency department service and the perception of the actual performance of the service.

A customer is anyone who comes into contact with our work. They may include internal customers—those within the organisation who will be affected by emergency department (e.g. diagnostic services, inpatient team registrars, ward nursing staff) and external customers—those outside the organisation who are affected by our work (e.g. patients and their families, ambulance service, GPs, taxpayers, politicians).

Organisation-wide quality

Quality management in an organisation is an organisation-wide effort to achieve sustained, ongoing improvements in quality, based on a study of organisational processes, and with decisions and results based on, and measured by, data. The management style is emphasised as a key to success: a management style that is proactive and leading, rather than reactive and authoritarian. Management recognises that employees care about their work and will take initiatives to improve it, and that employees are empowered to perform to their full potential when supported with appropriate tools and training. Management also recognises that quality is ultimately the responsibility of top management.

Clinical governance, with its concept of managerial legal responsibility for patient mishap, and clinical quality as an equal partner to fiscal control at board level are consistent with a quality management approach.

Patient satisfaction

In emergency medicine, the available body of knowledge suggests that most emergency department patients want the same things: promptness, courtesy, compassion, privacy and information. Providing quality emergency department care hinges on our ability to empathise and communicate—to understand and be sensitive to the feelings, thoughts and experiences of our patients.

Communication with patients

Introduce yourself by title and name. Establish eye contact at the beginning of the consultation and maintain it at reasonable intervals to show interest. Apologise for the wait if appropriate, and indicate by your manner that you are ready to give the patient your full attention.

Key tasks to be covered in your communication with patients:

• eliciting the patient’s main problems, their perceptions of these problems, and the physical, emotional and social impact on themselves and their families

• tailoring information to what the patient wants to know, and checking their understanding

• eliciting the patient’s reactions to the information given, and concerns raised

• determining how much the patient wants to participate in decision making (when treatment options are available)

• discussing treatment options so that the patient understands the implications

• maximising the chance that patients will follow agreed decisions and advice.

Patient expectations

Management of patient expectations is fundamental to satisfaction. Studies suggest that dissatisfaction increases as patients’ triage acuity decreases. The actual wait time to be seen by a physician and total length of stay in the emergency department are not significant predictors of patient satisfaction. Managing the perception of waiting time, by communicating an expected wait time to patients, seems to be more important for satisfaction than the actual wait time.

Complaints

Avoidance of complaints is facilitated by good communication with patients. Review of reasons patients complain or litigate demonstrate the main reasons for patient dissatisfaction: patients felt their opinion was ‘devalued’; information was poorly delivered; their viewpoint was not understood by the doctor; their complaint was not acknowledged; or they felt an honest explanation for an adverse outcome was not given. Criticism of treatment by a second doctor also made patients more likely to take legal action.

Dealing with complaints successfully involves apologising and ‘owning’ the problem, doing it quickly, giving a factual explanation of what happened and what is being changed to prevent a recurrence, and thanking the person for bringing the problem to your attention. It is advisable to involve a senior staff member in this process.

Risk management and human factors

Risk is the exposure to the possibility of such things as economic or financial loss, physical damage, injury or delay, as a consequence of pursuing or not pursuing a particular course of action. Risks and their consequences in the emergency department include:

• an adverse event during the care process

• a failure of equipment or computer systems

• patient or family dissatisfaction

• a threat to physical safety

• a breach of legal or contractual responsibility

• unfavourable publicity

• a breach of patient privacy

• loss of patient valuables.

Human factors engineering (or ergonomics) is the study of how human beings interact with their environment, or the study of factors that make work easy or hard.

Managing risk requires proactive attention to predictable risk areas and moving away from the traditional approach to error in medicine, with its emphasis on personal responsibility, autonomy and accountability.

A ‘human factors’ approach emphasises:

• systems rather than people, e.g. rosters to be according to ‘safe hours’ practices (night shifts preferably 8 hours or less, no more than three consecutive nights, no shift exceeding 16 hours, avoid on-call shifts with frequent night calls followed by normal working days, roster adequate time off after nights) to prevent fatigue-induced poor performance

• non-punitive approach to adverse events, viewing errors or near misses as a chance to learn about the system

• emphasis on the multifactorial nature of errors

• assumption that errors will occur so that systems of work should be designed to make it difficult for clinicians to act erroneously—errors should be obvious before they cause harm and there should be multiple buffers to minimise the effect of errors

• emphasis on team interactions

• sharp end, blunt end—considering not only the point where the actual error occurred but the organisational policies and resource allocation decisions that created the system.

Occupational health and safety obligations of employers include maintaining a safe workplace for all employees through reducing the risk of occupational illness and injury. Specific examples in emergency department include infection control measures, minimisation of aggression and violence in the emergency department through staff training and provision of environmental controls (controlled access points to emergency department, video surveillance, security personnel, personal duress alarms, safe observation rooms for potentially violent patients).

Quality assurance

Ongoing monitoring of aspects of clinical care, human resource management, adverse events, complaints and staff wellbeing occurs to demonstrate compliance with basic standards.

Indicators assess compliance across the dimensions of:

• access—for example waiting times; access block

• safety—for example staff absence due to work-related injury; needle stick injury; patient falls; aggressive or violent incidents towards staff

• acceptability/customer focus—for example complaint rate; appreciation letters

• effectiveness—for example admission by triage category; time to thrombolysis or analgesia

• efficiency—for example waiting time by triage category; total treatment time

• appropriateness—rate of unnecessary testing; antibiotic choice.

EDITOR’S COMMENT

Although these topics are not foremost in the hearts of health carers, they are ignored at your peril as they are essential parts of what we do.

The quality and length of time with the patient has been proven to be the main factor contributing to dissatisfaction (complaints, law suits).

RECOMMENDED READING

Australian Council for Safety and Quality in Health Care website: http://www.safetyandquality.org.

Bronstein D.A. Law for the expert witness. Florida: Lewis; 1993.

Dix A., Errington M., et al. Law for the medical profession in Australia, 2nd edn. Port Melbourne: Butterworth–Heinemann; 1996.

Forrester K. Essentials of law for health professionals. Sydney: Harcourt Publications Limited; 2001.

Garvin D.A. Building a learning organization. Harvard Business Review. 1993. Jul-Aug

Maguire P., Pitceathly C. Key communication skills and how to acquire them. BMJ. 2002;325:697-700.

Standards Australia. Guidelines for managing risk in healthcare. SAA/NZS HB. 2001:228.

Sun B., Adams J. Determinants of patient satisfaction and willingness to return with emergency care. Ann Emerg Med. 2000;35:426-434.

Vincent C., et al. Framework for analysing risk and safety in clinical medicine. BMJ. 1998;316:1154-1157.

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