Medical-Legal Issues in Emergency Medicine

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212 Medical-Legal Issues in Emergency Medicine

Gregory L. Henry, Geetika Gupta

image      Key Points

• Establish a trusting and positive doctor-patient relationship

• Understand the medical-legal system

• Manage concerns specific to the current-day emergency department

• Manage specific high-risk medical complaints

Medical-legal considerations are an integral part of every doctor-patient interaction. This chapter provides an overview of the important balance between the practice of medicine and legal implications.

For a more in-depth version of this chapter, see www.expertconsult.com

Establishing a Trusting and Positive physician-Patient Relationship

Be Service Oriented

The key is to understand that as an emergency physician (EP), when you arrive at work, you check all your prejudices at the door. Remember that you may never be able to solve a patient’s chronic medical problem, but showing genuine concern and providing a positive patient experience will go a long way toward relieving the patient’s fears. Box 212.1 is a list of simple rules that should help facilitate the doctor-patient interaction.

Box 212.1 Rules for Physician-Patient Interactions

It does not matter how long they waited; it was too long. Never argue with patients over the amount of time that they waited.

Never use excuses, such as you are working short staffed or “I’ve been here all day.”

Apologize for the wait. As soon as you have apologized for the wait, you have at least acknowledged that the patient’s time is as valuable as yours and you understand that waiting is not a comfortable situation.

Thank the patient the family for coming in.

Trivialization of minor complaints can lead to a dissatisfied patient. Most patients believe that they have a legitimate reason to be in the emergency department. To be informed that it is the doctor’s perception that theirs is not an emergency never helps the doctor-patient interaction and does not prevent further emergency department visits.

Charting and the Medical Record

The only things that really go to court with a physician are the patient’s medical record and the physician’s credibility. The chart is the only document that the plaintiff attorney has to understand what happened and to be able to decide whether bringing legal action is worthwhile.

Multiple issues with regard to a chart accompany every lawsuit. Box 212.2 is a list of simple rules that should help facilitate the key points for a sound medical chart.

Box 212.2 Legibility and Decipherability

Handwritten entries on a chart must be legible to the average person. Action can now be brought by hospitals against physicians for poor handwriting.

Electronic Medical Records

The electronic medical record (EMR) is legible but often very sparse in the medical decision-making section. An advantage of the EMR is that all entries are time-stamped, thereby giving a better account of the emergency department (ED) visit. Its biggest disadvantage is automated and templated charting. This can be a downfall and cause to question the chart’s accuracy, particularly if obvious mistakes are present.

Timeliness of Making a Record

All events and entries made on the chart should be timed. This is critical to fully understand what transpired during the ED visit.

Address Nursing Charting

Emergency physicians (EPs) should also routinely read nursing notes during the shift. If there are discrepancies between the EP and nursing assessments, they can be addressed while the patient is in the ED.

Altering the Medical Record

Corrections should be made in an obvious and straightforward manner. All additions and corrections to the chart need to be dated and timed. Nefarious correction of the medical chart is now a federal crime.

Comments on the Chart

The chart is a legal document protected by both state and federal law. The chart should reflect the objective observations of concerned health care personnel.

Discharge Instructions

Approximately half the lawsuits in emergency medicine revolve around discharge instructions and the discharge program given to patients. Box 212.3 gives a few paramount rules for discharge instructions.

Box 212.3 Rules for Discharge Instructions

All instructions should be time specific.

– Time-specific instructions such as “Return in 6 hours for reexamination of your abdomen or sooner if worse” are clear and to the point. The patient knows what to do and when to do it.

Instructions should be action specific.

– Although discharge instructions need to be brief and to the point, they need to provide knowledge to the patient about the disease process. It is important to discharge an informed customer.

Abbreviations in discharge instructions should be avoided.

Instructions should be doctor specific.

– It is preferable that the patient be given names and phone numbers for all the physicians with whom the patient is to follow up.

Understanding the Medical-Legal System

Information on this topic can be found online at www.expertconsult.com

Concerns Specific to the Current-Day Emergency Department

The function of this section is to delineate areas where emergency medicine and the law come into direct contact on a regular basis. The emergency department (ED) is under increasing stress to serve and aid the growing number of uninsured patients. No other specialty in medicine is subjected to laws by the national government to screen and stabilize all individuals entering the ED regardless of their ability to pay for the services.

Ownership of Patients

The legal relationship of parties is that the physician is “the retained agent and servant of the patient.” When a patient is in your department, he or she is your patient from a legal standpoint, and thus the physician cannot abrogate responsibility by saying that the patient belongs to another physician.

Combative Patients

The ED has the duty to restrain patients when they constitute a danger to self or others by virtue of a physical or mental condition (Box 212.4). Determination of mental and physical capacity is the key issue. Patients who lack capacity will depend on the substitute judgment of the EP. Belligerent patients who have capacity require law enforcement to handle the situation.

Box 212.4 Rules for Restraining Combative Patients

Restraint methods should be appropriate.

– Both chemical and physical restraints are still commonly used to control patients who constitute a threat.

The need for restraints must be documented.

– The specific mode of restraint needs to be written as an order, and the patient’s basic personal needs require proper nursing care.

All restrained patients require reevaluation.

– This is done at specific intervals to determine the continued need for restraints.

Emergency physicians rarely become involved legally in restraint cases.

– The exception is battery/assault cases in which they (1) fail to document the reason for restraint and (2) fail to follow their own hospital emergency department’s restraint policy.

Civil Commitment

Again, the role of the ED is to secure the patient so that the patient does not cause harm to self or others and to fill out a first certification detailing the behavior and physical findings that justify civil commitment.

• Most states require a second certification process to be done in a specified time frame by a mental health professional.

• Ruling out organic causes of disease is necessary.

• The primary goal of the initial evaluation is to arrange for the patient to be reevaluated by mental health professionals.

Transfers

The Emergency Medical Treatment and Active Labor Act (EMTALA) is the rule by which a patient can legally be transferred or discharged out of the ED to another facility. Box 212.5 contains a set of guidelines for complying with the EMTALA.

Box 212.5 Key Points of the Emergency Medical Treatment and Active Labor Act

Informed refusal can allow a patient to exempt himself or herself from EMTALA regulations. The emergency physician and the nurse involved in the case should carefully note this on the patient’s chart.

The patient should be stabilized such that the acts of transfer and moving the patient to a higher level of care have a reasonable probability of providing a better outcome for the patient.

A hospital that usually and customarily receives patients should accept these patients unless their capabilities, at that time, are overwhelmed and they are unable to find room. This fact should be noted on the records when trying to procure transfer of a patient.

Failure to comply can lead to hefty fines to the institution and physician.

Reportable Illnesses

The legal system and the ED function together as essentially an officer of the court. In all 50 states, child abuse, elder abuse, and assaults are reportable conditions. The EP also maintains a duty to third parties who may not be present in the ED. Therefore, when a patient has a gunshot or stab wound, other people may be at risk, and failure to report such injuries could place the patient and institution in danger.

Legal Blood Draw for Alcohol Testing

This varies from state to state because some states have given the police warrant authority to obtain blood whereas in others a court order is required. It is the ED’s responsibility to comply with the law. The police have the right to discarded body contents (e.g., vomitus, urine, feces) once such material passes into the public domain. An EP is also obligated under the EMTALA to offer a medical screening examination to all individuals arriving for a blood draw.

Incident Reports

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