Parent removing child AMA? Know legal risks! MD protecting child is easier to defend

(Editor’s Note: This is a part one of a two-part series on legal risks involving parents refusing medical care for a child. This month, we cover how to document. Next month, we cover reporting obligations.)

Was a physician attempting to protect a child from harm due to a parent’s refusal of care? This scenario is much more defensible, from the point of view of malpractice insurers and defense attorneys, than defending a medical negligence case against the physician when a child suffers as a result of the naïve decision of the parent, says John W. Miller II, a malpractice insurance broker and principal at Sterling Risk Advisors in Marietta, GA.

“The struggle between parental autonomy and child welfare occasionally falls in the lap of physicians,” says Miller. “Physicians should not be fearful of the legal repercussions of advocacy for their pediatric patients.”

Many times, parents project guilt over a bad outcome that occurred due to their leaving against medical advice (AMA) onto physicians and decide to file a malpractice suit, says Miller. “The defense ‘I tried to warn them and they ignored my advice’ often works to sway juries in adult AMA cases,” says Miller. “The same juries may hold the physician responsible in a pediatric case, because he or she should have been an ardent advocate for the pediatric patient that cannot protect him or herself.”

Miller says that generally, physicians dealing with parents who wish to sign their children out AMA should go through this list of questions and document the parent’s responses just as they would if faced with a patient refusing treatment:

• Does the parent understand and appreciate the diagnosis, prognosis, and the likelihood of risks and benefits of leaving the hospital?

• Is the parent aware of the alternatives to treatment in the hospital and the risks and benefits associated with these?

• Can the parent make and communicate a choice?

• Can the parent articulate a reason for the refusal that is consistent with his or her values?1

“Positive responses to these questions make the claim more defensible,” says Miller. “Any negative answers to these questions raises the stakes for defending a physician’s inaction.” He adds that physicians should be mindful of the literacy level of parents signing their children out AMA. “Many of the malpractice insurers now encourage physicians to write their AMA discharges at the sixth-grade level,” says Miller.

Medical Mutual Insurance Company of North Carolina partnered with Health Literacy Innovations after a 2007 North Carolina Institute of Medicine report challenged malpractice carriers to incorporate health literacy education and effective communication skills into their risk management training.

“They’ve found that tailoring AMA documents to the appropriate reading level has assisted their physicians in providing effective communication to a population of patients who need the education of the risks and benefits posed by an AMA discharge the most,” says Miller.

Reference

1. Lo B. Resolving Ethical Dilemmas: A Guide for Clinicians, Second ed. New York, NY: Lippincott; 2005.