EPs overestimated the risks of myocardial infarction and the potential benefit of hospital admission to chest pain patients, according to a recent study of 425 patient-physicians.1
“We were vaguely aware that communication in these scenarios was incomplete, and we hoped to characterize and quantify this. We did not expect to find that the information being exchanged was often inaccurate, or that the gaps in perception were this big,” says David H. Newman, MD, FACEP, the study’s lead author and associate professor of emergency medicine and director of clinical research in the Department of Emergency Medicine at Icahn School of Medicine at Mount Sinai in New York City.
EPs often fail to discuss risks of treatments and interventions, Newman notes. However, failure to obtain diagnostic tests is a far more common allegation in malpractice lawsuits.
“One of the reasons that there have been few, if any, ramifications for physicians in these scenarios is that our legal system tends to reward ‘doing,’” Newman explains.
Overtreatment, a common problem with distant consequences that are easy to defend as a best effort by the EP, is an uncommon source of legal review, he says.
“Undertreatment, a much less common problem that is easily conjured in retrospect and emotionally simpler as a source of blame, is a far more common reason for legal finger pointing,” Newman notes.
If immediate treatment is required in order to prevent death or other serious harm to an ED patient, treatment may be provided without consent.
“However, this does not mean that informed consent should not play an important role in the activities of the ED physician,” says Sue Larsen, co-founder and chief operating officer of Astute Doctor Education in Laguna Niguel, CA.
“During litigation, patients often say they were rushed into signing informed consent forms but did not really understand what they were signing,” Larsen says.
She gives the scenario of a patient presenting to the ED with a dislocated hip and fractured ankle who was told she’d be given morphine for the pain, and was also given the sedative midazolam without consent or knowledge.
“The patient was medicated twice, and woke up confused and scared. Hospital personnel refused to tell the patient what she had received, and told her she had experienced a ‘normal’ reaction,’” Larsen says.
The patient then fought the hospital for her medical records, and when these were received, discovered that she had stopped breathing during her treatment and had required resuscitation.
The hospital advised the health department that informed consent had been received; the patient experienced anxiety and depression, which she believed was due to the sedative medication.
“The patient then requested an audience with the hospital to discuss her care, but this was ignored,” Larsen says. “She is now considering legal action for incapacitation as a result of the lack of informed consent.”
A patient may have a viable informed consent case against an EP, even if there is no viable medical malpractice claim, says Gregory Dolin, MD, JD, co-director of the Center for Medicine and Law in Baltimore, MD.
“You can show the physician violated informed consent by not presenting the patient with alternatives and the risks and benefits of each,” he says.
If a physician recommended amputating a patient’s leg to save his or her life, but failed to present alternatives, the patient wouldn’t have a viable malpractice claim if amputation fell within the acceptable standard of care, he explains, “but informed consent is viable if the patient isn’t given information about alternatives.”
Informed consent cases “usually arise in conjunction with a traditional medical malpractice claim, but they don’t necessarily rise and fail together,” Dolin notes.
He says EPs should consider these questions: Is there more than one option? Would a reasonable person want to know about the other options? If so, did you present all the options to the patient?
“The default position should be that we tell the patient as much as possible, given the situation,” he says.
- Newman DH, et al. Quantifying patient-physician communication and perceptions of risk during admissions for possible acute coronary syndromes. Ann Emerg Med 2015. DOI: http://dx.doi.org/10.1016/j.annemergmed.2015.01.027
- Gregory Dolin, MD, JD, Associate Professor of Law/Co-Director, Center for Medicine and Law, Baltimore, MD. Phone: (410) 837-4610. E-mail: email@example.com.
- Sue Larsen, Astute Doctor Education, Laguna Niguel, CA. Phone: (646) 783-1000. E-mail: SueLarsen@AstuteDoctor.com.
- David H. Newman, MD, FACEP, Associate Professor of Emergency Medicine/Director of Clinical Research, Department of Emergency Medicine, Icahn School of Medicine at Mount Sinai, New York City. Phone: (212) 824-8067. E-mail: firstname.lastname@example.org.