Is family presence a factor in lawsuits?

When emotional family members are in the ED, what if they hear or see something that they misinterpret and later tearfully tell a jury that the staff were unprofessional or uncaring?

To reduce the chance of this happening, the ED team should be addressed and warned of the family's impending arrival before the family comes in, and they are encouraged to behave professionally, says Gregory P. Moore, MD, JD, an ED physician with Kaiser Permanente in Sacramento, CA.

To minimize malpractice exposure, perform major procedures before the family enters the room, Moore suggests. "When I have let family members in during resuscitation, it is usually after the initial procedures and evaluation has been done," he says. This often is a moot point, however, as the family typically arrives some time after the patient has come by ambulance, and the initial care has been provided.

This practice not only reduces legal risks, it also gives you an opportunity to share some information with the family when they arrive, such as what was done, what was noticed, and what is about to be done. "But most procedures have known complications," says Moore. "When a bad outcome develops, juries are made aware of that, and thus they understand that a complication, in and of itself, is not a breach in the standard of care."

Was family presence a factor?

It's difficult to determine whether family presence was a factor behind many ED malpractice lawsuits, says Ken Braxton, a health care attorney and partner at Dallas-based Stewart Stimmel. "This is because any court opinions are going to address the underlying medical facts of the case, not whether or not the family was present," he says.

However, that's not to imply the family's testimony would not be a key part of the case; it certainly would, says Braxton. "In most emergency department cases that I have defended over the past 20 years, the testimony of family members who are with a patient in the ED is always a significant part of the case, especially if their testimony is different than the care providers," he says.

Braxton gives the following example of a malpractice lawsuit involving a difficult intubation of a patient with chest trauma. In front of a family member, the physicians discussed whether the endotracheal tube was placed correctly into the lungs and questioned each other's findings from auscultation. "The family member, not understanding the 'checks-and-balances' approach to ensuring correct placement, and allowing the junior physician to learn from the senior's placement of the tube, interpreted that 'the first physician didn't know how to do it and had to have someone check it,'" he says.

A key concern is the level of understanding a "layperson" family member really has about how ED providers go about their work. Braxton has represented academic physicians as defendants in many malpractice cases, ranging from residents to faculty with decades of experience. "When we take a family member's deposition with the four or five defendants sitting in the room, the family member will testify that a medical student or junior resident was 'in charge' from what they saw," says Braxton. "And they will describe the senior faculty as not being really involved 'hands on' with the patient."

In this case, the family member clearly didn't understand how the ED team functioned, with a senior faculty directing the actions of all the various team members. "The junior resident physician may do much of the hands-on work and discuss the situation with this family member after, so they think the resident must have been the senior member of the team," says Braxton.

'Controlled chaos'

In several lawsuits involving traumatic intubations, insertion of chest tubes, and head trauma interventions, family members have misinterpreted the "controlled chaos" of saving a life as callousness, says Braxton. "In a crisis, the ED team must be able to function without having emotions play a role in their care, and this can be interpreted as indifference by a layperson," he says.

To avoid misunderstandings, if the family is allowed to stay in the room during resuscitation or any other lifesaving maneuvers, a health care provider from the ED should be assigned to communicate what is going on to the family, says Braxton. "Communication between health care providers and patients is always the best way to alleviate problems," he says. "For lifesaving maneuvers, the ED team must focus their total attention on the patient, without having to worry about liability as even a remote consideration."


For more information on liability concerns regarding family presence in the ED, contact:

  • Ken Braxton, Partner, Stewart Stimmel, 1701 N. Market St., Suite 318, Dallas, TX 75202. Phone: (214) 615-2013. Fax: (214) 752-6929.