Risk Management and Administrative Issues

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Chapter 71 Risk Management and Administrative Issues

Steven M. Selbst, MD, FAAP, FACEP

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?

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