EPs Face Specific Legal Risks if Signing Children Out AMA
Is a parent refusing recommended care for a minor patient in the ED? “Some emergency physicians (EPs) take undue comfort in signing them out against medical advice [AMA],” according to William M. McDonnell, MD, JD, associate professor of pediatrics in the Division of Pediatric Emergency Medicine, and adjunct professor of law at University of Utah’s S.J. Quinney College of Law in Salt Lake City.
All states have child abuse and neglect reporting laws that require the EP to notify the appropriate state authorities in cases of medical neglect, stresses McDonnell.
“Any time the EP discharges a child despite medical indications to the contrary, there arises some question as to whether the EP should have reported the case to child welfare authorities,” he says.
“In many states, the liability for such failure to report includes criminal sanctions against the physician,” says McDonnell. “There are numerous state mandatory reporting statutes that describe failure to report suspected child neglect as a criminal offense.”
When the EP is confident that the parental refusal does not rise to the level of reportable neglect, but, rather, simply constitutes a reasonable difference of opinion, the EP should carefully document this in the chart, advises McDonnell.
McDonnell says the language he commonly uses is: “I have discussed the risks and benefits of various treatment options with the parents. Although I have advised them that I believe that XYZ is the best option for this patient at this time, the parents have decided ABC. Although I believe that my recommendation of XYZ is the best option at this time, the parents’ medical decision-making of ABC is not unreasonable, and I do not believe that it rises to the level of medical neglect.”
“However, if I am unable to say that the parents’ decision ‘is not unreasonable,’ I call child welfare authorities,” says McDonnell.
The EP should consider whether the parents are making a decision that they feel is in the best interest of the child, or a decision that is in the parents’ own best interest, says Daniel M. Lindberg, MD, an attending physician in the Department of Emergency Medicine at Brigham and Women’s Hospital and assistant professor of medicine at Harvard Medical School, both in Boston.
“I can reasonably differ with a parent who feels that their child would prefer to take the very low risk of meningitis in order to avoid the certain, small discomfort of a lumbar puncture,” he says. “But I don’t think the parents have the right to decline a skeletal survey because they are worried that it will reveal abuse and put them in legal jeopardy.”
In some situations, a state has concurrent — and sometimes overriding — interests in the care of a minor under the parens patriae doctrine, which addresses the right of a court to make decisions on behalf of persons incapable of making them, adds Michael E. Clark, JD, LL.M, special counsel at Duane Morris in Houston, TX.1
“There are serious liability issues presented when physicians discharge pediatric patients AMA,” he says. One such situation involves parents who refuse to provide consent to a medically needed blood transfusion for their child, citing deeply held religious beliefs that require prayer and a reliance on God for healing.2
In the face of such a life-threatening situation, the EP should not sign off that the pediatric patient was discharged “AMA,” and instead should contact the hospital’s attorney, says Clark.
“They can get the necessary authorities involved, such as child protective services and the district attorney’s office, so that a court can make the legal determination, which thereby helps to insulate the physician and hospital from liability,” he says.
EP in “Tough Bind”
Parental consent is generally required to provide medical care to a child, and when parents choose to leave AMA, they have withheld their consent, says Douglas S. Diekema, MD, MPH, an attending physician in the ED at Seattle Children’s Hospital.
“This places the physician in a tough bind, and presents two dangers,” says Diekema. First, the EP has an obligation to clearly inform the parents that there are risks to leaving and to describe those risks. Second, the EP has an independent obligation to the child, both ethically and legally.
If the EP believes that the parents’ decision to leave AMA places the child at significant risk of serious harm, the EP has an obligation under the child neglect laws to report the family to the state’s child protection agency, says Diekema.
“Parents should be informed by the physician that they have this obligation under the law, and that they intend to do so if the parent chooses to leave,” he advises. If the risk is felt to be significant, serious, and imminent, such as respiratory failure, the EP may need to call the police in order to protect the child.
A signed form may provide some evidence that the parent understood the risks of leaving, but good documentation without a signed form will also serve that purpose, according to Diekema.
“More importantly, neither will get a physician off the hook for failing to report to the state child protection agency if the parent’s decision places the child at significant risk of serious harm and the child does, in fact, come to harm,” he says.
The best strategy is for the EP to communicate respectfully with families and get them to focus on the welfare of the child, says Diekema, noting that one of the most common reasons families leave an ED is that they get frustrated with how long they have waited.
Good communication about what is happening, what is going to happen, and frequent updates and explanations about wait times can go a long way to keeping a family from getting frustrated, adds Diekema. For instance, an EP might say, “It will take 60 minutes for these labs to come back. In the meantime, we will give your child some fluids through the IV.”
“Obviously reducing waiting times helps reduce these kinds of departures,” he says. “Ideally, the children who are so sick that leaving AMA would be dangerous, will get seen quickly and have treatment started.”
1. Ridgway D. Court-mediated disputes between physicians and families over the medical care of children. Arch Pediatr Adolesc Med 2004;158(9):891-896.
2. O.G. v. Baum, 790 S.W.2d 839 (Tex.App.—Houston [1st Dist.] 1990).
For more information, contact:
- Michael E. Clark, JD, LL.M, Special Counsel, Duane Morris, Houston, TX. Phone: (713) 402-3905. E-mail: firstname.lastname@example.org.
- Douglas S. Diekema, MD, MPH, Treuman Katz Center for Pediatric Bioethics, Seattle (WA) Children’s Research Institute. Phone: (206) 987-4346. E-mail: email@example.com.
- Daniel M. Lindberg, MD, Department of Emergency Medicine, Brigham & Women’s Hospital, Boston, MA. Phone: (617) 525-8025. E-mail: firstname.lastname@example.org.
- William M. McDonnell, MD, JD, Adjunct Professor of Law, S.J. Quinney College of Law, University of Utah, Salt Lake City. Phone: (801) 587-7450. E-mail: email@example.com.