Multiple Legal Issues with ED End-of-Life Care
February 1, 2023 3 minutes read
By Stacey Kusterbeck
There are some common legal issues surrounding end-of-life care provided in the ED, according to Renée Bernard, JD, vice president of patient safety at The Mutual Risk Retention Group in Walnut Creek, CA:
• A plaintiff could allege an emergency physician (EP) failed to respond appropriately to advance directives. For the claim to be successful, “the key is the advance directive would need to be known — communicated verbally by the patient or in documents available to that EP,” Bernard says.
Patients might present legal paperwork that establishes patient wishes, consent to treatment, or that authorizes others to make decisions (or this information might be in the electronic health record).
“Emergency medicine providers should absolutely follow the direction established in the paperwork if it applies to the situation,” Bernard stresses.
There can be legal repercussions for failing to obtain consent to treat (or failure to stop treating when consent is revoked). “If the patient’s consent information is clearly available from a credible, appropriate source and not followed, the provider can have liability exposure,” Bernard warns.
If no paperwork is present, then the ED provider will treat the patient according to standard practice for the symptoms or medical condition. EPs are obligated to do what is best medically for the patient at that time. “This includes engaging resources for access to hospice or palliative care,” Bernard explains.
Documentation showing the patient had the mental capacity for healthcare decision-making and expressly refused to consent to life-saving treatment is important.
“The emergency physician can contact psychiatry or ethics to help with the determination. The physician should document their capacity assessment in detail,” Bernard offers.
• In some cases, an end-of-life patient presents with a Physician Orders for Life-Sustaining Treatment or a clearly written directive, but a family member objects. If there is paperwork, then it must be honored unless there is some type of credibility issue or reason it does not apply. “Otherwise, the provider could face liability for not adhering to laws that govern consent to treat,” Bernard says.
For emergency providers, Bernard says the best approach is to continue treatment based on the patient’s wishes and contact the ethics committee to help determine the correct course of action.
• The family might arrive at the ED while resuscitation is ongoing and communicate the patient’s DNR wishes. At that point, resuscitation likely will continue while a member of the care team works with the family to obtain paperwork or designates the appropriate surrogate decision-maker.
“If that is not readily identifiable, the emergency medicine provider is going to do what is correct for the patient and the emergency medical situation they are facing, as is required by law,” Bernard notes.
• The EP might determine aggressive medical intervention is futile for an end-of-life patient. If so, Bernard says, “there is an obligation to communicate that medical opinion to the patient or decision-maker and work toward an agreeable plan, such as referral to hospice or transfer of care to another facility.”
• The ED provider might aggressively treat a patient with resuscitative measures in direct conflict with clearly stated patient wishes. “The ED provider could be sued for battery. The plaintiff would point to failure to follow hospital policy and procedure for advance directives to show that the ED provider was negligent,” Bernard says.
Emergency medicine providers are used to viewing poor outcomes as an adverse response to medical treatment administered. Bernard argues emergency providers need to change their mindset on this issue.
“Missing the opportunity to respect autonomy in care decision-making for a patient who no longer desires curative care should also be considered a poor outcome,” Bernard adds.
An attorney argues missing the opportunity to respect autonomy in care decision-making for a patient who no longer desires curative care should be considered a poor outcome.
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