Medico Legal Act in ED

Firdaus Jamali
Hanim
Husna
 Informed Consent
• Legal standard which providers educate
patients (those who have the capacity to make
medical decisions or their surrogates) about
proposed treatments and alternatives.
• Providers should act in their patients’ best
interests while preserving autonomy
whenever possible
 The American College of Emergency
Physicians Code Ethics
• Serve the best interest of their patients by
treating or preventing disease or injury and by
informing patients about their condition
• Adult patients with decisions making capacity
have a right to accept or refused
recommended health care, and physician have
a concomitant duty to respect their choices.
 Basic Elements of Informed Consent
• Informed consent have 2 conditions:
1. Patient capacity
2. Free choice
3. Information necessary for patient
decision making
4. Discussion and decision
 Patient Capacity
• Decision making capacity
• Ability of the patient to make informed
medical decisions.
• Capacity:
- An individual's ability to make a decision based
on personal values and comprehension of the
likely consequences of that decisions
 Patient Capacity
• The capacity to make a medical decisions :
- Ability to receive the information
- Ability to process the information
- Ability to Understand the information
- Deliberate about a decision
- Make articulate
- Defend choices
 Factors for Emergency Providers to
Consider when Determining Capacity
• Presence of condition impairing mental
functions
• Presence of basic mental functioning
(awareness, orientation, memory, attention)
• The patient has understanding of specific-
related information
• Appreciation of the significance of the
information for the patient’s situation
• Patients ability to reason about treatment
alternatives in light of values and goals
• Complexity of the decision making task
• Risk of the patient decision
• Patients ability to describe and consistency in
reporting the basis of their decision
 Free Choice
• Informed consent must be voluntary and free
of coercion
• The choice must be free of manipulation or
threats by providers, family or other outside
influence and free of emotional or physical
coercion
 Information Necessary for Patients
Decision Making
• The physician provide the patient needed to
make a reasoned, informed decision
• The provider performing the procedure should
be the one to obtain consent
• A delegate may obtain consent but the
supervisor is responsible to ensure the
consent was truly informed
• The required information for decision making:
- Diagnosis
- Nature and purpose of treatment
- Risk and consequences of treatment
- Alternatives and their risk and benefits
- Prognosis if treatment is or not accepted
 Discussion and Decision
• Give the patient the opportunity to ask
questions while considering the decision
• If the patient willing to continue then give
explicit authorization for the treatment or
procedure
• If the patient agrees to easily, review the
situation for barriers to communication
 Documentation of Consent
• The most important process when obtaining
informed consent
 Exceptions to Informed Consent
• Emergencies
- Emergency providers should render needed
emergency treatment even in situations where
consent cannot be obtained or ascertained in a
timely fashion due to the nature of the illness,
- If treatment can be delayed without harm, obtain
consent before the treatment
- Should the situation change during treatment
obtain consent before further treatment
• Public health imperatives
- Situations where the public good may limit
individual patient autonomy.
- Eg: patients with high risk communicable disease
and patients with mental illness which can cause
danger to themselves or the public area
- If patient meet criteria for health-department
mandated treatment and quarantine, consent do
not given.
 When Informed Consent Cannot Be
Obtained
• The providers should identify a surrogate decision
maker or directive
• A typical decision making progression:
- Spouse
- Adult children
- Parents
- Adult siblings
- The nearest relatives
• If there is no person available for treatment decisions,
providers should proceed with the patients best
interest in mind .
 Informed Refusal
• Patient may refused part of treatment plan, to be
evaluated entirely, or wish to leave before the
completion of planned evaluation
• Physician should make sure no
miscommunication/misunderstanding
• Then, correct issues that may prevent an open,
no contentious discussion
• Finally, try to develop an alternative to the
original plan that does not significantly alter the
risk to the patient
 ED Departure Against Medical Advice
and ED Elopement
• 1.4 M patients left hospital EDs against medical
advice in 2010
• Characteristics of patients who leave against
medical advice:
✓ Lack of insurance
✓Male
✓ younger age
✓Alcohol/drug dependency
✓ Psychiatric illness
✓ low income
• Reasons for their desire to leave:
✓ outside obligations
✓ wish for treatment at other hospital
✓ concerns for cost treatment
✓ a desire for tobacco, drug or alcohol
✓ narcotic request
• To proceed with against medical advice discharge,
assess the patient’s capacity, with special attention to
barriers limiting capacity
• Document the patient’s behaviour (no impairment of
capacity by intoxication/mental illness
• Educate the patient about risk associated with refusing
the treatment
• Discuss the patient’s reason for leaving
• Use plain language, avoid medical terms
• Make a substantial effort to convince the patient to
remain but do not threat
 Issues in the ED of Minors
1. Treatment of minors in emergencies
– Minors often present to ED without parent/legal
caretaker
– EDs are legally obligated to evaluate all patients
presenting with a medical condition and stabilize
any emergency condition without requirements
for consent
 Emancipated Minors
• Minors who have become independent from the
care and control of their parent or guardian are
considered emancipated and may provide
consent as adults.
• Mature minor exception
- If a minor is sufficiently mature to understand the
nature and consequences of a proposed medical
treatment, then the minor should be able to
consent or refuse treatment without parental
involvement.
Privacy, Confidentiality and Reporting
• Important elements of ethics, religion and law
because they affirm the dignity and value of
the individual.
• Respect patient privacy and disclose
confidential information only with consent of
the patient or when required by an overriding
duty such as the duty to protect others or to
obey the law.
 Privacy/Confidentiality
• Information gained in doctor-patient relationship
shall remain confidential
• Exceptions
- Notifiable disease
- Mandatory reporting
- Impaired health practitioner
• Conflicts
- Duty to community (medical risk, serious crime)
 Negligence Standards
• Physicians are expected to exercise reasonable
care and practice within the accepted
standard of care.
• A failure to do so is considered negligence
 Emergency Medical Treatment And
Active Labor Act (EMTALA)
• Referred to as the "anti-dumping" law, it was designed to
prevent hospitals from transferring uninsured or
Medicaid patients to public hospitals without, at a
minimum, providing a medical screening examination to
ensure they were stable for transfer
• EMTALA requires Medicare-participating hospitals with
emergency departments to screen and treat the
emergency medical conditions of patients in a non-
discriminatory manner to anyone, regardless of their
ability to pay, insurance status, national origin, race,
creed or color
 Definition of Emergency by EMTALA
• An emergency medical condition (EMC) is
defined as "a condition manifesting itself by
acute symptoms of sufficient severity
(including severe pain) such that the absence
of immediate medical attention could
reasonably be expected to result in placing the
individual's health [or the health of an unborn
child] in serious jeopardy, serious impairment
to bodily functions, or serious dysfunction of
bodily organs
 What is EMTALA's scope?
• EMTALA applies when an individual "comes to
the emergency department.
• CMS defines a dedicated emergency
department as "a specially equipped and
staffed area of the hospital used a significant
portion of the time for initial evaluation and
treatment of outpatients for emergency
medical conditions
 Provisions of EMTALA?
Hospitals have three main obligations under
EMTALA:
• Any individual who comes and requests must receive a
medical screening examination to determine whether
an emergency medical condition exists
• If an emergency medical condition exists, treatment
must be provided until the emergency medical
condition is resolved or stabilized
• Hospitals with specialized capabilities are obligated to
accept transfers from hospitals who lack the capability
to treat unstable emergency medial conditions
 The Requirements For Transferring
Patients Under EMTALA?
• Under the law, a patient is considered stable for
transfer if the treating physician determines that
no material deterioration will occur during the
transfer between facilities
• EMTALA does not apply to the transfer of stable
patients; if the patient is unstable, then the
hospital may not transfer the patient unless:
1) A physician certifies the medical benefits expected
from the transfer outweigh the risks
2) A patient makes a transfer request in writing after
being informed of the hospital's obligations under
EMTALA and the risks of transfer
• Also, the transfer of unstable patients must be
"appropriate" under the law:
i. he transferring hospital must provide ongoing care
within it capability until transfer to minimize transfer
risks
ii. provide copies of medical records
iii. must confirm that the receiving facility has space and
qualified personnel to treat the condition and has
agreed to accept the transfer
iv. the transfer must be made with qualified personnel
and appropriate medical equipment
 Enforcement Of EMTALA
• A complaint is required to initiate an investigation of a
hospital for an EMTALA violation
• The complaint may come from a patient, hospital,
hospital employee, or anyone who thinks care has
been denied someone inappropriately
• Punishments under EMTALA can be severe and may
include a hospital’s exclusion from participating in
Medicare and Medicaid in addition to substantial fines
• Providers found to violate EMTALA can also be fined
and/or excluded from federal programs, making them
nearly unemployable