1 Which diagnoses involving pediatric patients in an emergency department (ED) are most likely to result in malpractice suits?

Most malpractice suits involving children in an ED result from failure to diagnose meningitis, appendicitis, fractures, and testicular torsion. In addition, failure to diagnose sepsis (especially meningococcemia), medication errors, errors in wound management, failure to diagnose slipped capital femoral epiphysis, myocarditis, dehydration, and child abuse are among the common sources of lawsuits in pediatric emergency medicine.

Reynolds SL: Missed appendicitis and medical liability. Clin Pediatr Emerg Med 4:231–234, 2003.

Rothschild JM, Federico FA, Gandhi, TK et al: Analysis of medication-related malpractice claims. Arch Intern Med 162:2414–2420, 2002.

Selbst SM, Friedman MJ, Singh SB: Epidemiology and etiology of malpractice lawsuits involving children in US emergency departments and urgent care centers. Ped Emerg Care 21:165–169, 2005.

2 Why are emergency physicians at high risk for involvement in a malpractice suit?

Whenever the outcome is poor, an emergency physician is likely to be the subject of a malpractice suit, especially if the family is angry during their visit to the ED. Anger is a major force in initiating a lawsuit. Families in the ED may be dissatisfied before they even interact with the physician. They may be angry because of a long waiting time to see the physician. Sometimes they are angry with a discourteous staff member. The impersonal setting in the ED may be another contributing factor. It is often difficult to establish rapport with a family during a brief visit to the ED, which also puts the physician at a disadvantage if the outcome is poor.

Selbst SM, Koren JB: Preventing Malpractice Lawsuits in Pediatric Emergency Medicine. Dallas, American College of Emergency Physicians, 1999, pp 1–196.

3 Which physicians have the highest average settlement per case? Why?

Pediatricians have the fourth highest indemnity per case compared with physicians of all other fields of medicine. Only those cases from neurology, neurosurgery, and obstetrics/gynecology are higher. The average settlement for pediatricians is about $254,000 per case. Pediatricians face high payments because an injured child generally has the potential for a longer period of suffering than an adult patient.

Physician Insurers Association of America: www.thepiaa.org

4 How is the “standard of care” defined?

The standard of care is defined as care that a reasonable physician in a particular specialty would give to a similar patient under similar circumstances. Physicians generally are held to the same standard of care across the country—a national level of competence. It is assumed that all physicians have the same knowledge of current procedures, treatments, and practices. Although not every doctor has the same access to specialists and technology, it is usually expected that an emergency physician will recognize a medical condition and attempt to get the proper care for the child as soon as reasonably possible.

5 In addition to civil charges, can criminal charges be brought against an emergency physician in a malpractice setting?

Rarely. In some cases, such as failure to report a case of drug abuse, child abuse, or injury by a weapon, an emergency physician may be charged with a misdemeanor. Such charges usually are not made unless it is believed that the doctor was deliberately uncooperative. If the patient has died, the doctor can be charged with manslaughter if it is believed that an extreme or unusual breach of the physician’s duty took place. The court may determine that the physician’s actions were reckless or disregarded the rights and safety of others. Again, this event is very rare.

6 What is the statute of limitations?

The statute of limitations sets the length of time in which a person may bring a lawsuit for an alleged injury. Each state sets its own statute of limitations, but most states set a limit for adult patients of 2–3 years from the time that an injury due to alleged negligence is discovered or should have been discovered. After that time has passed, a malpractice suit cannot be initiated, regardless of the merits of the case. In a malpractice case involving a child, the time period does not begin until the child has reached the age of majority (18–21 years of age) in many states, because the child is unable to initiate legal action on his or her own behalf. Thus, it is possible for a lawsuit to be filed 18–20 years after the alleged injury occurred.

Selbst SM, Korin JB: Malpractice and emergency care—doing right by the patient and yourself. Contemp Pediatr 17:88–106, 2000.

7 What percentage of malpractice lawsuits is brought to a jury for a verdict?

Only about 10% of malpractice cases reach a jury verdict. Most are settled out of court, and some are dropped altogether. Nonetheless, a malpractice lawsuit, once initiated, is a long and stressful event for most physicians.

8 How are plaintiffs rewarded in malpractice lawsuits involving children in the ED?

Although millions of dollars are paid out in malpractice lawsuits each year, money is actually paid to plaintiffs in about one third of closed claims. The overwhelming majority of payments occur in pretrial settlements. If a case proceeds to trial, the plaintiff is rarely rewarded. Less than 2% of cases result in judgment for the plaintiff.

Selbst SM, Friedman MJ, Singh SB: Epidemiology and etiology of malpractice lawsuits involving children in US emergency departments and urgent care centers. Pediatr Emerg Care 21:165–169, 2005.

9 What role does good communication play in reducing malpractice suits?

Good communication with patients and families is crucial. A lawsuit is more likely when there is poor communication between family members and the medical staff. One study showed a direct correlation between good communication skills of physicians and fewer malpractice suits. A patient or family must perceive that the physician has a caring attitude, professional integrity, openness, and high standards of excellence. Another study of families who had sued physicians found that most mothers were dissatisfied with the doctor–patient communication. About 13% reported that the doctor would not listen to them, 32% noted that the doctor would not talk openly, 48% believed that the doctor attempted to mislead them, and 70% believed that the doctor did not warn them about long-term neurodevelopmental problems.

Hickson GB, Clayton EW, Githens PB et al: Factors that prompted families to file medical malpractice claims following perinatal injuries. JAMA 267:1359–1363, 1992.

Hickson GB, Federspiel, Pichert JW, et al: Patient complaints and malpractice risk. JAMA 287:2951–2957, 2002.

10 How important is it to arrange for a follow-up examination of a child seen in the ED?

Physicians have been found liable when they failed to instruct parents, instructed them inadequately, or could not prove that they gave instructions to return to the ED or to seek care elsewhere. In one case, a patient successfully sued because a doctor did not document that an incidental finding of hypertension had been addressed and follow-up arranged. The child eventually developed end-stage renal disease. Discharge instructions for patients or parents should include specific information about when to seek follow-up care with the child’s primary care physician or specialist or when to return to the ED.

Selbst SM: The febrile child—missed meningitis and bacteremia. Clin Pediatr Emerg Med 1:164–171, 2000.

11 What is the physician’s obligation to inform parents about a procedure or treatment?

Physicians are obligated to obtain informed consent from parents. Most states follow a “patient-focused” concept of informed consent. That is, the doctor must give the consenting person (guardian) a description of the procedure and the risks and alternatives so that a reasonably prudent person would be able to make an informed decision about the procedure. A physician must speak in “lay language” so that the guardian understands the information. A guardian or patient is entitled to know the diagnosis, nature of the proposed treatment or procedure, risks and side effects of the procedure, available alternatives, and risks involved with alternatives. Guardians or patients also are entitled to know the prognosis with and without treatment. A physician should disclose all but the most remote risks if the outcome may be serious, but only common risks if they are likely to result in only minor harm to the child.

Kassutto Z, Vaught W: Informed decision making and refusal of treatment. Clin Pediatr Emerg Med 4:124, 2003.

12 How important is it to get parents to sign a consent form for a procedure?

A signed consent form has some value. It provides documentation that an attempt was made to educate the guardian about a procedure. However, signing a form does not always equate with informed consent. A parent may still claim that risks and benefits were not adequately explained. The consent form must be clearly written in language that most parents would understand. If a signed consent form is not used, the medical record should contain documentation that specific risks and benefits were explained to the guardian before the procedure was performed.

13 When is it permitted to treat a minor in the ED without consent from a parent or guardian?

Any minor can and should receive medical care in the event of a true emergency. Most states define an emergency in vague terms such as one that “threatens life and limb” or “life and health” of a child. Such vague definitions are meant to protect a well-meaning physician. In reality, because an emergency is often difficult to define, every patient who presents to the ED should receive a medical screening examination, even if parents or guardians are not available to give consent. Generally, parental consent for treatment is not needed if a child presents to the ED with a chief complaint related to venereal disease, pregnancy, testing for HIV, or drug and alcohol abuse. However, many states require that the child be over the age of 14 before treatment can be rendered for these conditions.

14 What is an emancipated minor?

An emancipated minor is one who can seek and receive medical care without the consent of parents. In almost all 50 states, an emancipated minor is defined as one who is:

Many states consider a pregnant minor to be emancipated and allow her to give consent for care for herself and her unborn baby.

Anderson SL, Shaechter J, Brosco JP: Adolescent patients and their confidentiality: Staying within legal bounds. Contemp Pediatr 22:54–64, 2005.

15 What is the “mature minor doctrine”?

This law, recognized by about 22 states, allows a minor over the age of 14 years (not necessarily emancipated) to consent to medical or surgical treatment even if it is not a true emergency. In the judgment of the treating physician, the minor must be “sufficiently mature to understand the nature of the procedure and its consequences.” The treatment must be intended to benefit the minor rather than someone else and must not involve serious risks. For example, the mature minor doctrine was applied to the case of a 17-year-old girl who consented to receive treatment for a minor finger laceration without parental consent.

American Academy of Pediatrics Committee on Pediatric Emergency Medicine: Consent for emergency medical services for children and adolescents. Pediatrics 111:703–706, 2003.

Kassutto Z, Vaught W: Informed decision making and refusal of treatment. Clin Pediatr Emerg Med 4:124, 2003.

16 In which situations do parents not have the right to refuse treatment for their child?

If a life-threatening situation exists and the emergency physician believes that it is unsafe for a patient to leave the ED to seek care elsewhere, a family cannot sign out against medical advice or refuse care for their child. Likewise, if the patient or parent is under the influence of drugs or alcohol and cannot understand the risks and benefits of receiving or refusing care, the patient cannot be permitted to leave the ED. Finally, if child abuse is suspected, a guardian may not refuse care for the child.

17 What is the appropriate way to correct a written error in the medical record?

An error should be corrected with a single line drawn through the incorrect statement. The correction should be initialed and dated by the clinician. The emergency physician should not attempt to hide an error written on a patient’s chart.

18 List guidelines for documentation in the medical record of a child who presents to the ED

19 How should an ED physician proceed if the referring primary care doctor disagrees with the ED physician’s assessment and plan for the child?

It is not uncommon for a referring physician to have a specific plan in mind for a pediatric patient. However, once the child arrives in the ED, the emergency physician probably will have some liability if the outcome is poor. The ED physician may be considered in a better position to determine the child’s need for treatment and hospital admission, especially if the referring doctor has not actually examined the patient. Thus, the emergency physician should not automatically defer to the referring doctor on the telephone. The emergency physician should try to reach an agreement about the child’s care without compromising what he or she believes is the best plan for the child. If the referring doctor does not agree with the decision to admit a child, it is best for that doctor to come to the ED (if he or she has staff privileges) to examine the child and assume responsibility for the disposition. Emergency care should not be delayed while waiting for a primary care physician or specialist requested by the primary care physician to arrive in the ED. Hospital policies should be in place to guide the staff in such situations.

20 What is EMTALA?

The Emergency Medical Treatment and Active Labor Act (EMTALA) states that all hospitals that receive Medicare funds and have an ED must provide an “appropriate medical screening examination” to all patients who present to the ED to determine whether a medical emergency exists. EMTALA was developed to protect patients without medical insurance from being “dumped” by some hospitals, but the law applies to patients with insurance as well as to those who belong to a managed care plan. Many experts recommend that an emergency physician perform the medical screening examination rather than a nurse. However, EMTALA has been updated, and hospitals may allow nonphysicians to perform the screenings as long as hospital policies define in writing that such individuals are authorized to perform the screenings. The acuity of the patient’s illness may indicate whether a physician should perform the screening. A medical screening examination may range from a brief history and physical examination to a complex process involving ancillary studies and procedures. The screening examination must include all appropriate ancillary tests and services normally available to any patient. The tests must be ordered regardless of the patient’s insurance if they are needed to determine whether an emergency exists.

Bittinger AM: Changes to EMTALA rules affect pediatric emergency departments. Pediatr Emerg Care 20:347–353, 2004.

Linzer JF, EMTALA: A clearer road in the future? Clin Pediatr Emerg Med 4:249–255, 2003.

21 When is transfer of a child from the ED in compliance with EMTALA?

A patient may be transferred from the ED if the transfer is medically indicated and the patient needs a level of care that is not available at the transferring hospital. An unstable child may be transferred if the patient or parents make the request. Informed consent should be obtained if the patient or parent requests the transfer. If the transfer is medically indicated, the emergency physician must document that the benefits of transfer outweigh the risks and must arrange for an “appropriate” or safe transfer.

Woodward GA: Legal issues in pediatric interfacility transport. Clin Pediatr Emerg Med 4:256–264, 2003.

22 Is a pediatric ED responsible for an adult with an emergency according to EMTALA?

If a patient is within 250 yards of the hospital, EMTALA rules apply. Thus, if a person (child or adult) collapses on the parking lot or sidewalk outside the ED, or in the hospital gift shop, the hospital is obligated to screen and appropriately stabilize the individual, regardless of the person’s ability to pay. Pediatric ED staff should screen and attempt to stabilize the adult patient within their capabilities. Staff should not just call emergency medical services without first starting to treat the adult. The hospital should generate a medical record for the adult patient, and the physician may wish to certify that benefits of transfer to a hospital for adults outweighs the risks of continuing treatment in the pediatric hospital, which has limited capabilities.

23 What is the policy of the American College of Emergency Physicians (ACEP) about providing telephone advice from the ED?

The ACEP policy (2000) states that most medical conditions cannot be accurately diagnosed by telephone. Each ED should have a procedure to identify the nature of all incoming calls. Persons making calls about life- or limb-threatening medical emergencies should be given information about how to access the emergency medical services system. Calls from patients recently discharged from the ED should be managed by prearranged protocols. In the interest of good patient care, the ACEP recommends that EDs do not attempt medical assessment or management by telephone. Callers should be advised that EDs are available at all times to assess their condition.

American College of Emergency Physicians: www.acep.org

24 What are the most important factors in patient satisfaction in the ED?

Patient satisfaction depends primarily on prompt treatment, the caring nature of the emergency nurses and physicians, and the degree of organization of the medical staff.

25 What are the most common sources of complaints resulting from pediatric visits to the ED?

Most patient or parent complaints concern waiting time, quality of medical care (including an incomplete medical examination or failure to order enough tests), attitude of the ED staff, and misdiagnosis. In a general ED, complaints about billing are frequent, but billing accounts for only about 20% of complaints from a pediatric ED. Other complaints from families involve an unclean appearance and lack of privacy in the ED.

26 What are “good Samaritan statutes”?

Good Samaritan statutes exist in almost every state and provide immunity to physicians and others who err while administering emergency medical care to ill or injured people. The laws were passed to encourage physicians and others to stop at the scene of an emergency and offer assistance without fear of a malpractice suit. The Good Samaritan statutes require that aid be given without compensation. They generally apply to care at the scene of an accident rather than in the ED or elsewhere in the hospital. Physicians are obligated to act in good faith but are not expected to put their own lives or their families in danger. Many statutes exclude “gross negligence” or “willful misconduct,” but a physician who makes an honest mistake is likely to be protected. A lawsuit still may be initiated if the patient suffers a poor outcome after treatment at the scene of an accident, but the suit is likely to be unsuccessful if the physician acted in good faith.

27 What should you do if named in a malpractice lawsuit?

Contact your insurance carrier as soon as possible about any potential lawsuit, even a threatening letter from an attorney. Early notification allows the insurance carrier to investigate the claim and prepare a defense. It is possible that a “default judgment” against the physician may result if the doctor fails to notify his or her carrier and the defense team is not given adequate time to answer a claim.

28 Which actions are reported to the National Practitioner Data Bank (NPDB)?

29 Who is permitted to access information from the NPDB?

Hospitals must request information when screening an applicant for medical staff appointment or granting new clinical privileges and every 2 years for medical staff reappointment. State licensing boards and other health care entities may request information when screening applicants for licenses or privileges. Professional societies also may request information when a physician applies for membership. In some cases, a plaintiff’s attorney may request information from the NPDB if there is evidence that a hospital failed to check on the status of a staff physician involved in a malpractice case. Currently, the lay public may not access information from the NPDB.

30 What are some tips to prevent complaints in the pediatric ED?

See Table 71-1. Complaints from parents in the ED are inevitable, but many are preventable. It generally requires less work to prevent a complaint than to manage a family after they have formally complained about their ED visit. Developing rapport with families is essential. Good communication skills are extremely important. Sitting at the bedside with a patient and family can improve patient satisfaction. When the physician takes time to sit in the examining room, patients perceive that they spent more time with the physician.

Table 71-1 Tips to Prevent Complaints in the Pediatric Emergency Department

From Cronan K: Pediatric complaints in a pediatric emergency department: Averting lawsuits. Clin Ped Emerg Med 4:235–242, 2003.

Cronan K: Pediatric complaints in a pediatric emergency department: Averting lawsuits. Clin Pediatr Emerg Med 4:235–242, 2005.

31 What is the recommendation of ACEP to manage telephone orders called to the ED by outside physicians?

ACEP believes that telephone orders for ED patients that are dictated by a physician from outside the ED can adversely affect the quality of medical care that patients receive and create legal liability for physicians. ACEP endorses the following principles:

It should also be noted that the Drug Enforcement Administration regulations prohibit dispensing controlled substances from ED stocks for treatment of patients by telephone order.

American College of Emergency Physicians: www.acep.org

32 Does the presence of family members at the resuscitation of a relative increase the risk of litigation for emergency physicians?

No data exist on family member presence and litigation. However, most families who witness a resuscitation report favorable opinions of the medical personnel involved. This is true even though the actual survival rate from resuscitation is far lower than the perception of the public. Family satisfaction after witnessing cardiopulmonary resuscitation may actually lower the risk of a malpractice lawsuit, even in the event of a poor outcome. Also, health care providers are more likely to consider the privacy of a patient and pain management when family members are present. Attention to these details may also reduce the risk of malpractice lawsuits.

Sacchetti AD, Guzzetta CE, Harris RH: Family presence during resuscitation attempts and invasive procedures: Is there science behind the emotion? Clin Pediatr Emerg Med 4:292–296, 2003.