33 Dan Miulli, Silvio F. Hoshek, and Rosalinda M. Menoni Neurologists and neurosurgeons attempt to treat the systems of the body that make the individual a unique person. If a person suffers almost any permanent neurologic deficit, he or she is usually changed forever. The person may not be able to hold the same employment position, make the same income, or relate to his or her family; be an interacting family member, caregiver, or productive member of society; or may die. Not only does the patient change, but the patient’s family changes. Therefore, neurologists and neurosurgeons continually face health care situations that put them at the highest medical-legal risks. Being admitted to the NICU may indeed be an intense and tumultuous time for the patient and his or her loved ones. This is especially true if an emergency trip to the hospital was necessary as opposed to being part of an elective procedure. It is therefore of paramount importance to create an atmosphere of security, confidence, and respectfulness through caring multidisciplinary professionalism. The primary goals should include an effort to minimize confusion and doubt during this very stressful period while providing free flow of communication and education. This is best achieved through a holistic team approach, which clearly identifies all treating members of the team and their individual areas of expertise. Most important is communication. During the period of patient and family stress, physicians and other health care workers must remain close. They must not back away because of difficulty in care, in family dynamics, or with patients and families relating to the situation. This is even more necessary if complications have occurred. All health care workers must present a united front for the patient and family. There must be clear communication about diagnosis, prognosis, and care. It is the physician’s responsibility to discuss the patient’s condition with the nurse, the primary patient advocate. It is the nurse’s responsibility to ask any questions so that he or she may understand all the care provided. It becomes severely problematic when the nurse dismisses or belittles any treatment options. If such a situation exists, then changing the lead health care provider should be discussed with the charge nurse and care transferred. Patients and their families, although under great emotional and physical stress, can perceive the discord and will turn that discord into frustration with and a lack of confidence in the health care provided. This situation leads to medical-legal claims. At times, patients in the NICU require care from multiple specialties. Although mandatory, it once again provides an opportunity for confusion in communication to patients and their families. The members of the health care delivery team may include trauma service, orthopedists, surgical subspecialists, intensivists, internists, pulmonologists, neurologists, infectious disease specialists, and physiatrists. The hierarchy within the ranks of a service should be delineated as well, appropriately identifying residents, physicians’ assistants, and attending physicians. Besides the doctors involved in the patient’s care, the patient and/or the family should be able to recognize the nursing staff, respiratory therapists, social workers, therapists from the physical, occupational, and speech services, dietitians, clinical pharmacists, and clergy. The best care of the patient involves much input and coordination; everyone should be of one mind and plan. Such coordination is accomplished through the guidance of regularly scheduled interdisciplinary meetings, during which information is updated and shared so that daily treatment plans can be formulated. Most legal claims result from a lack or misunderstanding of information. Most patients state that they were not told about an unexpected outcome. This can only be defended by careful communication in the presence of a witness and documentation in the medical record. Health care witnesses need to be present. The situation for the patient and family is complex, with emotions often drawing concentration away from discussions. In most circumstances, the primary service should discuss the coordinated care with the patient and family, often relying on attendance by a consultant. In the NICU, the captain of the team is usually the neurosurgeon, who should be the primary spokesperson, unless deferring to the expertise of another colleague individually or in a conference setting. References to colleagues and ancillary staff should always be made with professional decorum in mind, as a misinterpretation may undermine the credibility of the unit. The key to achieving the primary objective of an environment of trust and security is the demonstration of regard for preserving the patient’s dignity and displaying sensitivity and compassion while making time for daily briefings, particularly when the news is discouraging. It is vital to verify that successful communication has been accomplished. This can be quite challenging when attempting to convey the complexity of the natural history of a disease process or the risks and benefits of an intervention to patients and families from various cultural and socioeconomic backgrounds. The communication to the patient and family must be that the team recognizes the importance of their participation in the treatment plan and eventual outcome. The patient and family must pick a spokesperson for the group, the main contact for the patient and family. Patients and family members will not understand everything told to them. As expected, they will absorb what they understand most. Every person has a different background, and therefore the information that he or she takes away from any conversation will be different. If each person communicates at separate times with the NICU staff, there will be numerous interpretations of what has been told. When that interpretation is transmitted among the family, there will be opportunities for discrepancies. These discrepancies will be turned into stress, hostility, and lack of confidence in the health care team. During conferences and discussions with the patient and his or her family, it is necessary not only to convey information but to educate. Many people are visually oriented and benefit from seeing pertinent radiographic studies, such as x-rays, CT and magnetic resonance imaging (MRI) scans, and angiograms, while encouraging and soliciting questions. At times, patients and families overcome with shock and grief understandably hesitate to ask questions; they should then be invited to write down questions for the next discussion. The importance of establishing and maintaining this rapport cannot be underestimated, as it can prove to be sustaining, even in the face of a bad outcome or inevitable complications. Striving to create and maintain this type of atmosphere may actually foster trust and may prevent the formation of misunderstandings and misgivings that lead to discontent and possibly litigation. Detailed documentation of all discussions with patients and their families should always be noted in the medical record, preferably dictated as well. This is strongly recommended in addition to any institutional forms requiring signature. Documentation of communication takes the form of many types, from handwritten notes, collaborating nurses and ancillary staff notes, to dictations and hospital forms. Each one should document that communication took place. Each member of the NICU team must learn to communicate and exist in harmony, not only with patients but also with other members of the team. Physicians cannot and should not stand alone. The duty of the NICU team is to eliminate shame; encourage hope; communicate with respectful, unselfish caring any emotions and by logic; build bonds; and teach and inspire others to feel the same. People are different; however, differences build a better and stronger world. The NICU team must ask for opinions and try to empathize with what others are feeling. Consent is communication about and understanding of a treatment that the health care team is providing to the patient. It is not just about surgery but about many treatments, such as line placements, blood transfusions, ventriculostomy, chest and feeding tubes, and other tube and ostomy procedures. According to the California Hospital Association, Every competent adult has the fundamental right of self-determination over his or her body and property. Individuals who are unable to exercise this right, such as minors or incompetent adults, have the right to be represented by another who will protect their interests and preserve their basic rights.1 It is paramount that the physician providing the proposed care discuss and obtain consent. Only the health care provider can know what information is material to the decision-making of the patient (Table 33–1).2–4 When a neurosurgical intervention is performed with implied consent, it is important to discuss the treatment with the patient, if capacity is restored, and with the family as soon as identification of next of kin is established. The patient and family must understand the risks, benefits, and alternatives to the treatment, as well as the sequelae of the perioperative period. In reference to the initial intervention, this may include infection, rebleeding, further neurologic deterioration, and the need for reintervention. The inherent risks should not be trivialized. The physician must also discuss the nature and goals of alternatives or specific adjunctive medical treatment regimens such as medications that have known side effects or complications. A dictated example of supratentorial surgery follows. The risks and benefits of craniotomy for tumor resection have been discussed with the patient and family in extensive detail. I mentioned diagnosis and decompression as the major benefits. I emphasized that risks of surgery include, but are not limited to, bleeding, infection, [cerebrospinal] leak, stroke, seizure, cognitive deficits, speech problems, bowel/bladder dysfunction, visual deficits and/or diplopia, hemiplegia, and death. Any possible risk may occur. There may be additional pain, and the current pain may not resolve. General risks of pneumonia, [urinary tract infection], [deep venous thrombosis], cardiac arrhythmias, and pulmonary embolus were also discussed. The possibilities of incomplete resection, no benefit, repeat surgery, and need for adjuvant therapies such as radiation and/or chemotherapy were discussed. The seriousness of the patient’s condition, and of the planned intervention, was emphasized. I answered all questions and explained it was not possible to foresee all possible complications or adverse outcomes. No guarantees were given. Patient and family wished to proceed with surgery [Siddiqi, personal communication].
Medical-Legal Issues in the Neurosurgical Intensive Care Unit
Health Care Teamwork
Health Care Workers–Patient/Family Communication
Documentation
Obtaining Consent
| Issue | Description, who determines or who consents |
| Implied consent in a medical emergency | Patient unable to consent; no surrogate available; no evidence that patient or surrogate would refuse the treatment; patient would consent if able. |
| Capacity | Patient’s ability to understand nature and consequences of decision, to make and communicate a decision, and to understand its significant benefits, risks, and alternatives. Unless otherwise specified in a written advanced health care directive, the primary physician should make the determination that a patient lacks capacity. |
| Incompetence | Judicial determination; person lacks the capacity to perform a specific act, needs a conservator to make those individual decisions; consent deferred to other surrogate decision makers. A family member or significant other is the most common surrogate. |
| Nonconsent | Patient refuses recommended care. The patient has a right to know the consequences of refusing care so that the refusal is also informed. The physician has a duty to inform the patient of the risks of refusing to undergo a recommended simple and common procedure. A court order should be considered if motives are suspect. |
| Emancipated minor | Married or divorced, active duty with U.S. military, and 14 years of age and older by court order |
| Self-sufficient minors | 15 years of age or older, living separate and apart from parents, and managing own financial affairs. Providers can notify parents if not dealing with sensitive services, such as reproductive services, sexual assault, rape care and treatment, infectious reportable conditions, and some select behavioral health issues. |
| Minors | Consent obtained from adult parent or legal guardian, such as either of married biological parents, adoptive parents, a divorced parent with legal custody, or unmarried parents (the father may have to prove paternity if the mother disputes his role). Parents under 18 years of age still have capacity. Other possible consent givers include foster parents, same-sex partners, registered domestic partners, stepparents, grandparents, surrogate parents, and a temporary party with delegated authority, such as a coach or camp director. |
Reporting Abuse
Reporting child, elder, and domestic abuse and violent crime is mandated by state and federal statutes. Legally mandated reporters can be criminally or civilly liable for failing to report suspected abuse. The penalties can be 6 months of incarceration or a fine of $1000. Any legally mandated reporter has immunity when making a report. Confidentiality laws do not apply in suspected abuse cases. The statutory duty to report supersedes the confidentiality privilege.
Recording Accidents
When accidents or mistakes happen that result in adverse outcomes, report them to the patient, family, and hospital administration.
When incidents happen, fill out an incident report that is meant to be a confidential communication within the hospital. The report is intended solely to be transmitted to the hospital attorneys for their information and their use in the preparation, investigation, and defense of the health care worker in litigation or potential litigation. It should not be photocopied or made part of the medical record or referenced in the medical record. The incident report should contain a one-sentence summary, a description of the type of incident, including where it occurred, who was involved, any witnesses, contributing factors, the severity of outcome, what changes could be made to reduce the risk in the future, analysis and actions taken, who completed the form, departmental manager review, and quality assurance review. The form should be completed within 24 hours.
Components of a Lawsuit
For a lawsuit to be successfully completed and neglect proven, four areas have to be involved in the conduct between two parties:
- There must be duty between individuals.
- There must have been breach of duty by violation of the standard of care as determined by a reasonable physician.
- There must be injury due to breach of duty.
- There must be proximate cause.
Once all parts have been proven, the case is settled or judgment is made. Most physicians will be sued. Medical malpractice cases flooded the United States court system by the 1930s and such suits have continued unabated. The cultural, social, ethical, and economic system determines the probability of a lawsuit; however, communication between the doctor and the patient/family is paramount. The lead physician and the NICU team must be united and must communicate and educate patients and their families.
The time in the NICU is emotional and stressful. Those emotions either can be soothed by the NICU team or manipulated and twisted. There are individuals who tend to prey on the emotions of individuals, inventing or reestablishing baseline emotional confusion. Adding more energy to them, reigniting smoldering emotions renews the intensity that may have dissipated. These individuals may even fabricate new emotions for the patient and family, based on their interpretation of a previous foundation. Thus plaintiffs’ cases are generated by creating an emotional response. To prevent this, empathize, communicate, teach, and console.
One exception to consent being voluntary is found in the mental health acts that specify that a person can be involuntarily held and transported, assessed, and admitted for up to 72 hours for mental health evaluation and treatment if, as a result of a mental disorder, that person is a danger to himself, a danger to others, or gravely disabled. A related provision5 provides that any physician providing emergency services to a patient shall not be civilly or criminally liable for detaining the patient (without consent) for up to 8 hours, pending transportation to a mental health facility.
An exception to the aforementioned rule stating that the primary physician determines capacity was ruled on by the California Supreme Court,6 which found that in the case of a patient on an involuntary 72-hour hold who refuses medication, the determination of capacity shall be made pursuant to a judicial proceeding.
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