Legal Aspects of Emergency Care: Introduction
Medical malpractice lawsuits and medicolegal issues are a major concern for physicians and health care institutions. Most physicians expect to become involved in some manner in litigation alleging physician negligence. There are nearly 125,000 active lawsuits in the United States alleging physician malpractice on any given day. To put this number in perspective, consider that there are only 69,000 students currently enrolled in US medical schools. The physician named in a suit, however, may not always be a target defendant. In some circumstances, physicians who have provided treatment to a patient suing another physician may be subpoenaed to testify in court. Physicians may also become involved in litigation by agreeing to present medical opinion.
The filing of a malpractice action is likely to generate a great deal of emotional stress for the defendant physician. This chapter discusses medicolegal problem areas in the emergency department (ED) and suggests ways in which the emergency medicine physician can avoid malpractice litigation.
The true extent of the ED malpractice problem is unknown, partly because EDs and emergency physicians are insured by many different insurance companies that have not pooled their claim information and partly because many claims involve events that occurred not only in the ED but also in other parts of the hospital. It is clear, however, that disputes have increased attention to risk management; the number of ED malpractice claims and the size of malpractice judgments are increasing.
The net effect of malpractice suits has been to make emergency physicians, like physicians in general, practice so-called defensive medicine. Modern EDs provide mainly episodic care in a high-pressure environment that affords little time for leisurely contemplation and consultation when the diagnosis or best course of treatment is in doubt. In addition, prompt follow-up or consultation is often impossible to provide. These conditions mandate obtaining more supportive laboratory or radiographic studies than might be obtained otherwise (defensive medicine).
This chapter is intended to provide the practitioner with an overview of relevant medicolegal aspects of emergency medicine. The outcome of a particular malpractice case depends on its particular facts. Furthermore, both statutory and case law may vary considerably in different jurisdictions. For all these reasons, this chapter is not offered as legal advice.
General Legal Principles
There are two major types of law in the United States: criminal and civil. In a criminal lawsuit, the state or federal government sues an individual for actions considered to be against public interest, such as theft, murder, or rape. Such suits are intended to protect the public by apprehending and punishing the offender in a particular case and by deterring others from similar harmful conduct. Punishments range from fines to incarceration or even death in some jurisdictions. Given the relative severity of the punishment, the prosecution must prove its case beyond a reasonable doubt, a heavier evidentiary burden than in civil cases.
Civil cases typically involve a dispute between two or more persons or parties, in which the suing party (the plaintiff) seeks redress or compensation for an injury arising from the alleged wrongdoing of the defendant. Such cases may involve contract disputes, property disputes, or torts. A civil suit seeks to resolve the dispute and, if necessary, compensate the plaintiff, usually with money damages. Civil cases are concerned less with punishment than with compensation to the injured party. The suing party must prove his or her case by a preponderance of the evidence. Medical malpractice is a civil cause of action, a subset of tort law known as professional negligence.
Negligence, broadly defined, is the failure to do something that a reasonable person similarly situated would do, or doing something that a reasonable person similarly situated would not do. Negligence is a basic concept of tort law and courts have long used it to remedy damages caused by such imprudent behavior. It is also the predominant (but not sole) theory of liability in medical malpractice actions. To recover against a negligent physician, a plaintiff patient must prove each of the following four elements: (1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) damages. Thus, succinctly stated, negligence in the medical malpractice setting is the breach of a duty of care proximately causing damages.
The duty of care is a physician’s obligation to provide treatment according to an accepted standard of care. This obligation usually exists in the context of a physician–patient relationship but can extend beyond it in some circumstances. The physician–patient relationship clearly arises when a patient requests treatment and the physician agrees to provide it. However, creation of this relationship does not necessarily require mutual assent. An unconscious patient presenting to the ED is presumed to request care and the physician assessing such a patient is bound by a duty of care. The Emergency Medical Treatment and Active Labor Act (EMTALA) requires ED physicians to assess and stabilize patients coming to the ED before transferring or discharging them. Such an assessment presumably creates the requisite physician–patient relationship. As intimated above, courts often extend this duty of care outside the immediate physician–patient relationship to include foreseeable third parties at risk for foreseeable harm. A more detailed discussion of EMTALA is included later in this chapter.
When caring for a patient, a physician is obligated to provide treatment with the knowledge, skill, and care ordinarily used by reasonably well-qualified physicians practicing in similar circumstances. In some jurisdictions, these similar circumstances include the peculiarities of the locality in which the physician practices. This locality rule was developed to protect the rural practitioner who was sometimes deemed to have less access to the amenities of urban practices or education centers. However, the locality rule is being replaced by a national standard of care in recognition of improved information exchange, ease of transportation, and the more widespread use of sophisticated equipment and technology.
Establishing the standard of care in a given case requires the testimony of medical experts in most circumstances, unless the breach alleged is sufficiently egregious to be self-evident to the lay jury member—for example, amputating the wrong limb or leaving surgical implements in the operative field. A physician specializing in a given field will be held to the standard of other specialists in the same field, rather than to the standard of nonspecialists.
In order to recover in a malpractice lawsuit, the plaintiff must prove that the defendant’s negligence more likely than not caused the injury sustained. The connection between the negligent act or omission and the injury must be reasonably foreseeable and probable in a natural course of events rather than speculative or merely possible. Courts have approached the concept of proximate cause in a number ways. The “but for” rule states that the defendant’s conduct is a cause of the event if the event would not have occurred without it, that is, the event would not have occurred but for the defendant’s conduct. For example, but for the physician negligently transfusing an Rh-negative woman with Rh-positive blood, the woman’s unborn child would not have suffered hemolytic disease of the newborn and its complications. When it is foreseeable that two or more causes could result in the event, such as when a negligent act aggravates an underlying disease process, proximate cause may be found when the act in question is a substantial factor in bringing about the event.
This brief discussion of proximate cause only hints at the complexity of the issue, which is often much easier to state than to apply. The jury is charged with the responsibility of determining whether proximate cause exists and, as a practical matter, will find proximate cause if the conduct is of such closeness and significance to the event that imposition of legal liability is warranted.
Damages are awarded as compensation for loss or injury suffered as a proximate result of negligent conduct. A plaintiff may recover compensatory damages for disability or disfigurement, pain and suffering, the expense of past and future medical treatment and services, lost earnings, the loss of the services of a spouse, funeral expenses, and other expenses. In some states, punitive damages may also be awarded if the defendant acted with malicious intent or with reckless disregard for the consequences of his or her actions, that is, with willful or wanton misconduct. The jury determines the amount of damages awarded. This determination is afforded great weight by reviewing courts and will be amended only if it is clear from the evidence that the jury was moved by sympathy or prejudice in reaching its decision.
The statute of limitations is a law that specifies the time within which a lawsuit must be initiated. In other words, any person who feels that he or she may have a claim against another person must file that claim before the time period specified in the statute of limitations runs out. Failure to do so forever bars the claim. Despite its appearance, this law is not intended to shield the wrongdoer. Rather, its purpose is to promote timely filing of claims and thus to allow the defendant to prepare an adequate defense while memories are fresh, witnesses are available, and material facts are accessible.
The length of time varies for different causes of action, but the time frame for negligence actions (and, hence, most medical malpractice actions) is 2 years in most states. The time period typically begins to run once the aggrieved person knows or reasonably should know that a claim exists, not simply once the offense has occurred. However, most limitations statutes also include a longer, maximum time measured from the occurrence of the offense, known as the statute of repose. Both time periods will be extended if the offending party fraudulently conceals the negligent conduct or intentionally misleads the aggrieved party. Finally, of special note, most statutes of limitations do not begin to run against a minor until he or she reaches the age of majority. The age of majority varies from 18 to 21 years.
The plaintiff in a medical malpractice case has the burden of proving each of the elements of the cause of action and, in order to carry that burden, normally must present direct factual evidence showing that the defendant acted negligently. However, in those instances where the injury would not have occurred in the absence of negligence, such as when a patient emerges from an abdominal surgery with a shoulder injury, the plaintiff may invoke the doctrine of res ipsa loquitur, which translated literally means “the thing speaks for itself.”
Under this doctrine, which arose in response to medical professionals’ notorious unwillingness to testify against one another, the defendant’s negligence may be inferred from circumstantial evidence alone when direct evidence of the cause of injury is primarily within the knowledge or control of the defendant. To invoke this doctrine, the plaintiff must demonstrate that (1) the injury is of the kind that ordinarily does not occur in the absence of negligence, (2) the injury was caused by an agency or instrumentality within the exclusive control of the defendant, and (3) the patient did nothing to contribute to the injury. The legal effect of successfully invoking this doctrine is to create an inference of a breach of the standard of care and to shift to the defendant the burden of proving that no breach occurred. In essence, it makes the defendant speak when he or she would prefer to remain silent and about things it would be extremely difficult or impossible for the plaintiff to discover. The burden of proof shifts to the defendant only with relation to the breach of the standard of care. The plaintiff still retains the burden of proof with relation to the other elements of the cause of action. Although this doctrine is typically mentioned as a way to avoid the use of expert testimony to establish negligence, as a practical matter, expert testimony is still usually required to show that the injury would not have occurred in the absence of negligence.
Normally, a person is liable only for his or her own negligent conduct. However, according to the principles of vicarious liability, a physician or hospital may be liable for the negligent conduct of employees or agents. This doctrine was developed in the realm of employment, and a number of justifications for its use have been offered. The employer, it is deemed, has general control over the employment situation and must bear the responsibility for this supervisory control. The employer selects and trains his or her employees and should therefore pay for their negligence just as he or she profits from their efforts. The employer is better able to absorb losses and to distribute them to the public through increased prices, rates, or insurance. Essentially, these justifications describe a public policy to deliberately allocate risk. The losses caused by the torts of employees that are sure to occur in the conduct of the employer’s enterprise are placed on the enterprise itself, as a required cost of doing business.
Within the employment relationship, respondeat superior (Latin for “let the master answer”) confers legal liability on the employer for the actions of the employee. A hospital or a physician may therefore be found liable for the negligence of an employed office worker, physician’s assistant, or nurse. Similarly, a medical partnership may be held liable for the negligent acts of one of its partners, each of whom is an agent of the partnership. Liability is conferred, however, only if the agent or employee committed the negligent act within the scope of his or her employment. An employer will not be held liable for the intentionally wrongful acts of employees, such as sexual assault while at work, because such acts are not considered to be in furtherance of the business enterprise.
Traditionally, hospitals were not held liable for the negligence of physicians working in the hospital as independent contractors, such as physicians with admitting privileges. In this instance, the hospital was not deemed to have sufficient control over the actions of the physician to justify application of vicarious liability principles. In recent years, however, there has been an emerging trend to hold the hospital liable for the actions of independent contractor physicians who provide hospital-based services integral to the business enterprise of the hospital. The negligence of independent contractor physicians working in fields such as emergency medicine, radiology, and anesthesiology has been attributed to the hospitals where they work under the doctrine of apparent agency. Courts have reasoned that if the hospital holds itself out to the public as providing a given service and enters into a contractual relationship with physicians to provide this service, and the public looks to the hospital for this service without regard to the identity of the particular physician providing care, the hospital should be vicariously liable as an employer.
At one time, US common law did not require a physician or hospital to provide medical treatment to all who sought it. Thus, private, and some public, hospitals could refuse emergency care to a patient if the treatment would result in no compensation to the hospital.
A series of abuses of the privilege not to provide emergency care and the transfers of patients to hospitals that would accept those persons unable to pay caused mounting concern over the practice of so-called patient dumping. This concern resulted in landmark legislation that has had a huge impact on the practice of emergency medicine.
Congress enacted EMTALA as part of the Consolidated Omnibus Reconciliation Act of 1985. EMTALA applies to emergency care provided to all patients presenting to hospitals that have a Medicare contract and receive third-party payment from Medicare or Medicaid. It requires that anyone presenting to an ED requesting an examination be provided with an appropriate medical screening examination, sufficient to determine whether an emergency medical condition exists. This includes the use of appropriate ancillary services.
If no emergency medical condition is found, the duty to patients under EMTALA ends, although any alleged failure to provide appropriate care could still result in a malpractice claim. If an emergency medical condition is discovered, EMTALA requires stabilizing treatment for any emergency medical condition or labor. EMTALA restricts the transfer of patients with emergency medical conditions or women in active labor until the condition has been stabilized unless the benefits of transfer outweigh the risks.
A receiving hospital may not refuse an appropriate transfer. For hospitals with specialized capabilities such as burn units, trauma centers, or neonatal intensive care units, transfers cannot be refused unless the receiving facility does not have the capacity to care for the patient. Hospitals that receive inappropriate transfers are required to report suspected EMTALA violations within 72 hours. The law provides for civil monetary penalties and revocation of a hospital’s Medicare certification for violations. In addition, civil suits may be filed in state or federal court, bypassing any peer review or arbitration system established in some states as part of the tort reform.
EMTALA began as well-intentioned effort to address the problem of patient dumping. It has expanded far beyond its original intent to apply to psychiatric patients and even patients who have not yet arrived in the ED. This has placed an additional burden on emergency physicians as well as hospitals that transfer or receive transferred patients.
Hospitals have an interest in educating their medical staff about EMTALA. Emergency physicians are often most knowledgeable about these issues and are looked to for leadership. The responsibilities of emergency care are so important that any hospital that does not have a qualified emergency physician on duty might find itself unable to discharge its full legal duty to the public under the law.
Good Samaritans are statutes enacted in each state to protect health care professionals who render aid at the scene of an emergency from civil liability. These statutes are intended to encourage assistance in emergency situations by providing an affirmative defense to suits arising from the event. Statutes vary somewhat in terms of whom they protect, ranging from physicians to all individuals. The statutes generally require that the person rendering aid act reasonably, in good faith, without compensation, and without gross negligence or harmful intent.
Good Samaritan statutes have provided protection to physicians who were not officially on call but who responded to an ED case. Several jurisdictions have applied good Samaritan statutes to staff physicians called to an emergency in a hospital room. Good Samaritan protection does not apply to emergency medicine physicians seeing patients in the ED or to emergency medical services personnel in the field in the course of their employment. Good Samaritan statutes also do not create an affirmative duty to render aid.
Common Legal Problems in the ED
Consent, as a legal doctrine, arose out of cases alleging battery by a physician. In these cases, a surgeon performing a surgery for which consent had not been obtained was likened to nonconsensual touching, which is the definition of the tort of battery. Thus, it was immaterial that the patient needed the surgery, that the surgeon had performed the surgery well, or even that the patient would have consented if he or she had been asked. Infringing on the patient’s right to decide what would be done with his or her body was the essential wrongdoing. The right to be free from nonconsensual touching is fundamental in US civil and criminal law, in that battery is actionable in both arenas. These cases established that right in medical contexts as well.
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