Family's presence in ED may lower liability risk
April 1, 2007 6 minutes read
Family's presence in ED may lower liability risk
If anything, patients are less likely to sue, say experts
by Staci Kusterbeck, Contributing Editor
A growing number of emergency departments (EDs) are allowing family members to be present during resuscitation, as a result of multiple research articles that consistently report that families want to be present and generally have a positive experience. However, some ED providers refuse to allow this, fearing lawsuits by family members who misinterpret what they see and hear.
What are the liability issues in this new and controversial area? Several authorities who have both published and practiced in this area were asked their opinions.
Many people "focus too much" on the likelihood of lawsuits in these situations, says Gregory P. Moore, MD, JD, an ED physician with Kaiser Permanente in Sacramento, CA. As a general rule, patients are more likely to file suit if they think that are secrets being kept from them, since the lawsuit serves as a conduit to obtain answers to questions about what happened, he explains.
"If they witness good medical care, they will likely feel a sense of appreciation and satisfaction," says Moore. "There is no data that I am aware of but I would guess that the possibility of a lawsuit is decreased by family presence."
There is no question that family presence is becoming an increasingly accepted practice in EDs nationwide, says Eric T. Boie, MD, vice chair and clinical practice chair for the department of emergency medicine at Mayo Clinic in Rochester, MN. Rather than increasing legal risks, the practice improves the ability of a family member to cope with death, and reduces overall liability, he says.
"Family members leave with the understanding that everything possible was done, and that the team worked hard to save the patient, rather than wondering with no insight whether any more could have been done," says Boie.
Matthew J. Walsh, MD, FACEP, currently chair of the department of emergency medicine at the University of New Mexico, says that he has occasionally allowed families in the resuscitation room. "I feel that it's rare to have the right staff, sufficient resources, and a family that is present at the right time, but I have personally done it a couple of times," he says.
If the family member is accompanied by a physician or nurse who can explain everything being done, Walsh believes there is no significant risk of liability. "I never worried about legal issues of this type," he says. "Some folks I know feel everything is a risk and they would do nothing beyond the absolute ordinary. Others, like me, are less concerned and don't feel any significant risk."
Most of the time, the family didn't arrive in the ED until the code had been called and the patient was pronounced, notes Walsh. "In my current position, the present rooms are too small for the care team and the family, so I couldn't do this at present," he adds.
Moore says that in theory, one legal risk would be a suit for negligent infliction of emotional distress. This is a controversial legal theory not accepted in many jurisdictions, but the underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that person will be liable for monetary damages to the injured individual.
In contrast with intentional infliction of emotional distress, there is no need to prove intent to inflict distress — an accidental infliction, if negligent, is sufficient to support a claim.
To avoid this possibility, ED staff should discuss beforehand with the family what they are likely to encounter in the room and then ask them if they want to proceed, similar to the process for informed consent, advises Moore. "It would be very hard later for them then to sue and say 'You exposed me to something horrible and now I suffer from the experience,'" says Moore. The response would then be, "I warned you of what you would encounter and you wanted to be present."
Is it a factor in lawsuits?
What if an emotional family member hears or sees something that they misinterpret, and later tearfully tells a jury that the staff were unprofessional or uncaring? To reduce the chance of this happening, Moore says that the ED team should be addressed and warned of the family's impending arrival before the family comes in, and encouraged to behave professionally.
To minimize malpractice exposure, perform major procedures before the family enters the room, Moore suggests. "When I have let family members in during resuscitation, it is usually after the initial procedures and evaluation has been done," he says. This often is a moot point, however, as the family typically arrives some time after the patient has come by ambulance, and the initial care has been provided.
This practice not only reduces legal risks, it also gives you an opportunity to share some information with the family when they arrive, such as what was done, what was noticed, and what is about to be done. "But most procedures have known complications," says Moore. "When a bad outcome develops, juries are made aware of that, and thus they understand that a complication, in and of itself, is not a breach in the standard of care."
It's difficult to determine whether family presence was a factor behind many ED malpractice lawsuits, says Ken Braxton, a health care attorney and partner at Dallas, TX-based Stewart Stimmel. "This is because any court opinions are going to address the underlying medical facts of the case — not whether or not the family was present," he says.
However, that's not to imply the family's testimony would not be a key part of the case — it certainly would, says Braxton. "In most emergency department cases that I have defended over the past twenty years, the testimony of family members who are with a patient in the ED is always a significant part of the case, especially if their testimony is different than the care providers," he says.
He gives the following example of a malpractice lawsuit involving a difficult intubation of a patient with chest trauma. In front of a family member, the physicians discussed whether the endotracheal tube was placed correctly into the lungs, and questioned each other's findings from auscultation. "The family member, not understanding the 'checks and balances' approach to insuring correct placement, and allowing the junior physician to learn from the senior's placement of the tube, interpreted that 'the first physician didn't know how to do it and had to have someone check it,'" says Braxton.
A key concern is the level of understanding a "layperson" family member really has about how ED providers go about their work. Braxton has represented academic physicians as defendants in many malpractice cases, ranging from residents to faculty with decades of experience. "When we take a family member's deposition with the four or five defendants sitting in the room, the family member will testify that a medical student or junior resident was 'in charge' from what they saw," says Braxton. "And they will describe the senior faculty as not being really involved 'hands on' with the patient."
In this case, the family member clearly didn't understand how the ED team functioned, with a senior faculty directing the actions of all the various team members. "The junior resident physician may do much of the hands-on work, and discuss the situation with this family member after, so they think the resident must have been the senior member of the team," says Braxton.
In several lawsuits involving traumatic intubations, insertion of chest tubes, and head trauma interventions, family members have misinterpreted the "controlled chaos" of saving a life as callousness, says Braxton. "In a crisis, the ED team must be able to function without having emotions play a role in their care, and this can be interpreted as indifference by a layperson," he says.
To avoid misunderstandings, if the family is allowed to stay in the room during resuscitation or any other lifesaving maneuvers, a health care provider from the ED should be assigned to communicate what is going on to the family, says Braxton. "Communication between health care providers and patients is always the best way to alleviate problems," he says. "For lifesaving maneuvers, the ED team must focus their total attention on the patient, without having to worry about liability as even a remote consideration."
Sources
- Eric T. Boie, MD, Vice Chair and Clinical Practice Chair, Department of Emergency Medicine, Mayo Clinic, Rochester, MN Phone: (507) 255-2216. Fax: (507) 255-6592. E-mail: [email protected]
- Ken Braxton, Partner, Stewart Stimmel, 1701 N. Market St., Suite 318, Dallas, TX 75202. Phone: (214) 615-2013. Fax: (214) 752-6929.
- Gregory P. Moore, MD, JD, Emergency Department, Kaiser Permanente, 2025 Morse Ave.Z, Sacramento, CA 95825. Phone: (916) 973-1627. E-mail: [email protected].
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