SAN FRANCISCO — A lack of legal and insurance training, combined with a significant amount of professional confusion regarding what constitutes informed consent, standard of care and a provider-patient relationship have all contributed to the rise of several persistent myths about physician liability, said presenters at the 2016 AAP National Conference & Exhibition.
To dispel some of those myths, William M. McDonnell, MD, JD, FAAP, of the University of Nebraska Medical Center, and former chairman of the AAP Committee on Medical Liability and Risk Management, and Karen A. Santucci, MD, FAAP, from Yale University, a current member of the AAP Committee on Medical Liability and Risk Management, discussed the fact and fiction of physician liability, and explained how physicians can best protect themselves.
William M. McDonnell
Karen A. Santucci
“In real life, we run into myths all of the time, and for the most part they’re pretty benign,” McDonnell said. “There’s the myth that chewing gum lasts in the stomach for 18 or 23 years, or carrots make your eyesight better, or that sugar causes hyperactivity in children… However, when we start talking about liability myths, there is the potential for substantial harm.”
According to McDonnell and Santucci, few pediatricians know the details of their liability insurance, and nearly two-thirds do not recall any residency training on legal issues.
However, with some knowledge, the presenters said pediatricians may be able to better protect themselves. Below is a list of 10 of the most common medical liability myths encountered by McDonnell and Santucci.
People love their pediatricians, and they don’t sue them.
Although pediatricians enjoy a high level of trust from patients and the public in general, more than 1 in 5 pediatricians are sued by patients, and an average of 1.3% are sued each year, the presenters said. Over an entire career, a pediatrician’s risk of being sued ranges from 21% to 28%.
Informed consent is complete when the patient or their legal guardian signs the consent form.
“Informed consent is a legal requirement, and it’s not just a form,” Santucci said. “It is really a process. It is an opportunity for us to explain the necessity for a particular procedure or intervention, for us to talk about risks and benefits, and for us to talk about what could happen if we don’t intervene. Having someone sign that form may be what is least important about this process.”
If it is an emergency, a physician can treat any child without informed consent. Or conversely, a physician cannot treat any emergency without first gaining informed consent.
According to McDonnell, a physician can forego informed consent in the event of an emergency if the patient is unable to provide it, if no legal guardian is available, if time is of the essence, if a “reasonable person” would consent to the treatment, and if it is likely the patient would consent if they were able.
Apologizing or extending sympathy can be used against you in a court of law.
A majority of states have passed laws protecting physicians who wish to extend sympathy to patients without such statements being used against them in a medical malpractice case. According to the presenters, 29 states protect expressions of sympathy, regret and condolences to patients and their family. In addition, 8 states protect admissions of fault, as well as expressions of sympathy.
“I’m just a resident, so I can’t be sued.”
According to Santucci, 1 out of every 11 pediatricians is sued during their residency or for care delivered during their residency.
I can’t get sued if I just give telephone advice and never see the patient.
A physician has a duty to a patient once a physician-patient relationship is established, McDonnell said. According to legal precedent, a “curbside consult” does not constitute a physician-patient relationship. However, once a physician “begins care,” or has responsibility or authority over a patient, or determines the course of care, then a relationship is considered to be established, he added.
Once a patient is admitted as an inpatient, it is illegal to transfer them to another ED.
According to Santucci, the Emergency Medical Treatment and Labor Act was enacted in 1986 to prevent EDs from “dumping” patients off to other facilities rather than treating them. However, it is legal to transfer a patient to another ED if the initial inpatient facility cannot provide proper care, or if another facility can offer better care.
If a pediatrician expects child abuse, it is better to send the patient to an ED, where a social worker can confirm and report the abuse if necessary.
All 50 states have passed child abuse reporting laws, requiring physicians to contact the proper authorities once they have a reasonable suspicion that a child patient is being abused. According to McDonnell, penalties across the country range from a fine to imprisonment.
It is against the law for a pediatrician to provide care to an adult patient.
“The fact of the matter is, when we receive our pediatric licenses, our license is not to treat ‘pediatric medicine’… We receive a license to practice medicine,” Santucci said.
However, she added that pediatricians should keep accurate records of treatment provided to adults, and know the limits of their liability insurance, and whether it covers non-pediatric care.
The standard of care can be found in a journal, textbook or AAP policy statement.
According to McDonnell, “standard of care” is a legal term that can only be defined on a case-by-case, fact-specific manner. Proving standard of care involves expert testimony, clinical guidance from medical professional organizations and policy statements.
“You can think of it as the inverse of ‘breach of care,’” McDonnell said. “The standard of care is what you should have done to have not had a breach of duty to your patient.” – by Jason Laday
McDonnell WM and Santucci KA. Top 10 medical liability myths; AAP National Conference & Exhibition; Oct. 22, 2016, San Francisco.
Disclosure: McDonnell and Santucci report no relevant financial disclosures.