Biggest Legal Risk Is Delayed Treatment, Not Parental Consent
Suits more likely if you wait to evaluate or treat
If a boy is brought to an emergency department after being injured in an all-terrain vehicle (ATV) accident while at a friend's house, do triage nurses wait to get in touch with the parents before treating him?
If they do, this may constitute a violation of the Emergency Medical Treatment and Labor Act (EMTALA), warns Kevin M. Klauer, DO, EJD, FACEP, chief medical officer of Emergency Medicine Physicians in Canton, OH.
"When a pediatric patient shows up in the ED, often the first thing staff do is to say, 'Maybe we shouldn't do anything until we get ahold of the parents or guardian,'" says Klauer. "Many people don't realize that this is delaying their medical screening examination (MSE), including stabilization, as required by EMTALA."
Successful Suit Unlikely
As a general rule, minors presenting without a parent should be evaluated for the presence of any emergency medical conditions, according to Douglas S. Diekema, MD, MPH, director of education for the Treuman Katz Center for Pediatric Bioethics at Seattle (WA) Children's Research Institute, and an attending physician in the ED at Seattle Children's Hospital.
"If something is discovered that requires intervention before the legal guardian can be reached, that intervention should be provided," says Diekema. "The child's welfare should always be the first concern, regardless of whether consent can be obtained."
Attempts should be made to reach a legal guardian or parent at the first available time, says Diekema, and if the child has medical findings that do not require urgent management or do not represent a threat to his or her well-being, the treatment of those can wait until consent can be obtained.
"In the trauma situation, the child should be evaluated like any other trauma victim, and provided with any standard evaluations, tests, or treatments that are necessary to assure that the child does not suffer significant harm," says Diekema. This might include a CT scan, blood work, pain control, and even emergent surgery.
If the ED medical team provides standard care that is in the best interest of the child, and a good faith effort has been made to reach the legal guardian or parent while that is occurring, Diekema says that the likelihood of a lawsuit, particularly a successful one, is very low.
"On the other hand, the likelihood of a lawsuit is much higher if a child suffers significant harm because diagnostic modalities or treatments were withheld while waiting for someone who could provide consent," warns Diekema.
Once the MSE has been completed and the child is stabilized, the EMTALA obligation has been met, says Klauer, and the EP now must comply with state law requiring parental consent.
"If the child is stable, then you should be observing the state statute that requires consent," says Klauer. "If you go beyond what you need to do to stabilize them, then that could be a problem."
On the other hand, if after the ATV accident, the child is hypotensive with abdominal pain, or a splenic laceration is identified on a CT scan, the EP should not wait to get parental consent to send the child to the OR, he explains, as the child is not stabilized as defined by EMTALA.
"If at some point you still haven't been able to reach the parents, and it's putting the child's life or limb in jeopardy, then you just go ahead and do what you need to do," says Klauer.
Don't Delay Initial Care
Delaying evaluation and stabilization of an ill child to obtain parental consent doesn't make sense, says Klauer, and may be deemed a violation of EMTALA. Parental consent is not always necessary to obtain a lumbar puncture on a child with a temperature of 104.5, for instance, because it is part of the MSE.
"Is a parent going to sue you for doing the lumbar puncture, which is very safe? Or are they going to sue you for a bad outcome because of a delayed meningitis diagnosis and management?" he asks. "The sicker the child, the more latitude you have."
Although parents could theoretically sue an EP because a child was given the lumbar puncture without their consent, says Klauer, "this is a hypothetical argument that doesn't make any sense. I don't see that happening if the child is ill and the parents aren't immediately available."
Klauer says that he is unaware of any successful cases in emergency medicine in which a provider was sued for lack of consent to treat a child with a serious illness or injury, when the parents could not be contacted.
"You are not going to get sued for trying to do the right thing for the patient when they require services and the parents aren't available," he says. "There are very few courts, or even plaintiff's attorneys, that are willing to say, 'You didn't have consent, so technically this is battery.'"
However, says Klauer, an EP is likely to be sued if treatment, management, or diagnosis is delayed for any reason, including waiting to obtain parental consent.
Alfred Sacchetti, MD, chairman of the department of emergency medicine at Our Lady of Lourdes Medical Center in Camden, NJ, says that when faced with a child with an emergency, "there is no such thing as consent. There is no delaying initial care pending contact of anybody."
In a true emergency, he says, the EP should treat the child as though the parent was standing in the room. "You are always better off doing what is best for the child, rather than having to say, 'I was afraid the parents might not want me to do this, so I held off,'" says Sacchetti.
If the child has a nonemergent condition, he adds, care can still be provided anyway while simultaneously trying to contact the responsible party to obtain consent. "There is no way that anyone would say, 'Don't stop the bleeding on my child's cut until I get there.' That is just not going to happen," says Sacchetti.
This means that if a child comes in with a laceration, the EP stops the bleeding, he says, or if a child comes in with a sore throat, the EP is obliged to make sure there is no overwhelming infection or airway problem.
"Once you find they have no true emergency, now you are in a totally different ballgame," he says.
If a forehead laceration requires treatment but the child is stable, he says, you can now wait to discuss the care with the parent, he says, who may request a plastic surgeon to repair it or may be comfortable with the EP doing so.
"Now you are not delaying critical care. You are delaying care that has some viable options in its management," says Sacchetti, adding that the laceration should be repaired if you are unable to contact the parents after several hours, due to increased risk of infection.
A parent may sue the EP if the laceration is repaired without consent, explains Sacchetti, but a suit is far more likely if you send the child home hours later when it's too late to suture the wound.
"You're so much better off than if you say, 'I was afraid they'd sue me if I sewed it, so I sent the child home without sewing it,'" says Sacchetti.
In this case, Sacchetti says the EP's defense would be that the parents couldn't be located. "The parents will look like ungrateful individuals," he says. "The defense attorney will say, 'You weren't around, your kid was in desperate need, and you're going after the only person who had the guts to help?'"
Sources
For more information, contact:
Douglas S. Diekema, MD, MPH, Treuman Katz Center for Pediatric Bioethics, Seattle (WA) Children's Research Institute. Phone: (206) 987-4346. Fax: (206)-884-1091. E-mail: [email protected].
Kevin M. Klauer, DO, EJD, FACEP, Chief Medical Officer, Emergency Medicine Physicians, Canton, OH. E-mail: [email protected].
Alfred Sacchetti, MD, Chairman, Department of Emergency Medicine, Our Lady of Lourdes Medical Center, Camden, NJ. Phone: (856) 757-3803. Fax: (856) 365-7773. E-mail: [email protected].
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