Trauma Care, Medical-Legal Issues, and Risk Management

Sherry Morris

Paul Kerr

Medicine and law are two professions that frequently become necessarily intertwined. The practice of medicine is not only dictated by a strong understanding of science and the human body but also of the law. There are many issues that the trauma provider faces that can be simplified by involving a risk manager who is familiar with the state and federal laws that govern the practice of medicine. It is no longer good enough to just practice the best medicine you feel is applicable, you must also think about the standard of care set by your peers across the country and how the care you provide could carry you through a medical malpractice case.

There are many legal issues that will be part and parcel of relationships which physicians have with peers as well as with patients and their families. Knowledge of the applicable laws will assist in effective communication and help the physician feel more comfortable with practice decisions.

The information contained in this chapter is a sampling of some common legal issues you should be familiar with as a trauma physician. While it should be noted that laws vary from state to state, many of these issues are federal in nature and are applicable to all citizens of the United States. To familiarize yourself with state laws where you practice, contact your risk manager and ask for an informational session providing common areas specific to your geographic area.

THE ROLE OF THE RISK MANAGER

The successful risk manager must possess many of the same qualities as the successful trauma surgeon. Although the informational focus is dramatically different, the need for constant continuing education within the field and the overwhelming variety of areas of responsibility mandate that the risk manager stays updated on the happenings in the regulatory and legal community as it applies to medicine. The risk manager relies on the medical practitioner to paint an accurate medical picture and then relies on his or her own skill sets to perform legal analyses. The risk manager must be able to listen to and understand all of the information provided and use it to evaluate a situation and deliver a concise recommendation to the physician, administration, hospital staff, patient, or the health care decision maker. The risk manager must collaborate with the appropriate attorney to evaluate the situation and determine recommendation on the basis of past court decisions and legal evaluation. While the risk manager must know and be able to state the law for certain situations, an attorney may be necessary to determine how an unclear situation should be handled based on an analysis of relevant case law for the area.

As patients and their families take advantage of increased access to medical information through Internet searches, the questioning of physicians and the care they provide
have become a daily part of medical diagnosis and treatment. Effective communication has long been a challenge for physicians and patients. The added element of scattered information gained from potentially unreliable Internet sources has made communication ever more complicated. In optimal situations, the informed patient is more aware of the options and able to better understand the treatment choices. Whatever the situation, communication with the patient is paramount to success as a physician. A patient who feels included in the decision-making process for his or her own health care and who feels informed throughout is generally a happier patient and one less likely to seek legal recourse in the event of an adverse outcome.

MEDICAL-LEGAL ISSUES THAT AFFECT TRAUMA CARE

Medical malpractice, related insurance costs, and tort reforms are factors that have entered into the trauma arena. Patients and their families are bombarded with advertisements from law firms promising money for medical wrongs. Many of these advertisements suggest that if a patient is injured or dies in a hospital, a medical provider must have done something wrong. Trauma facilities have certainly felt the impact of the litigious society the United States has become. Trauma providers, as well as many other medical specialists, have begun to practice defensive medicine and/or employ avoidance behavior. Avoidance behavior occurs when the medical specialist declines to provide trauma or emergency care because of the fear of litigation or fear of provoking an increase in the cost of malpractice insurance coverage. Defensive medicine occurs when diagnostic and therapeutic interventions go above and beyond what the practitioner feels is medically necessary for the treatment of a particular patient’s complaints. In a research study performed by Harvard School of Public Health together with Columbia Law School and utilizing a professional survey organization, physicians who practice in Pennsylvania were asked to respond to a survey regarding defensive medicine. The survey found that 93% of the physicians surveyed reported that they sometimes practiced defensive medicine. The behaviors that defined defensive medicine for the purpose of this study included ordering more tests than medically indicated, prescribing more medications than medically indicated, referring patients to other specialists in unnecessary circumstances, suggesting invasive procedures to confirm diagnoses, and avoiding certain procedures or interventions.¹

In each of these, and many other ways, the law has entered into the decision-making arena for health care providers. Even the most careful practitioner will face difficult legal dilemmas but armed with the proper knowledge, will handle the situation with confidence.

EMERGENCY MEDICAL TREATMENT AND ACTIVE LABOR ACT

Patient Scenario

A 31-year-old female presented to a small community hospital following an all terrain vehicle (ATV) accident. She was hypotensive and was complaining of abdominal pain. A computed tomography (CT) scan was performed and showed bleeding in her abdomen. The on-call surgeon for the emergency room (ER) was called. The surgeon for the community hospital did not come in to see the patient but told the staff to transfer her to a trauma center.

The ER physician at the community hospital phoned the trauma center’s transfer center and reported the patient’s condition to the trauma surgeon for transfer acceptance. The trauma surgeon said that he would be happy to take the patient as a transfer but that she needed to be hemodynamically stable before she could be transported. He expressed concern that she would die in transport with the reported vital signs. He said that the surgeon needed to come in to the community hospital, take her to the operating room (OR), and pack her abdomen with laparotomy sponges.

The surgeon at the community hospital called back to say that he wanted to transfer the patient and refused to take her to the OR. He stated that he did not have the proper equipment to perform the surgery because of not having a rapid infuser. The trauma surgeon had no choice but to send the trauma center flight team to transport the patient from the community hospital at that point and attempt to get her to the trauma center quickly enough to save her. The patient was brought to the trauma facility and expired before she could be taken to the OR.

What action was required by the small community hospital prior to transporting the patient? Did that facility violate Emergency Medical Treatment and Active Labor Act (EMTALA)?

The federal EMTALA was passed in 1986 in an effort to stop ERs from turning patients away based on their ability to pay. The materialization of the law was due to a public outcry rooted from the experiences of two distinct patients who were deemed victims of patient dumping.

The first, Eugene Barnes, was a 32-year-old unemployed mechanic who was stabbed in the head and suffered a gaping wound. He stumbled for a couple of blocks and then collapsed in front of a crowd and was taken by ambulance to Brookside Hospital in San Pablo, California. The emergency department at Brookside Hospital had an on-call neurosurgeon. He was called but he refused to assume care of the patient. The ER physician called a second neurosurgeon (this one was not on call) who also refused to take the patient. The ER physician then called another county hospital and asked the neurosurgeon there to take over care of the patient. That neurosurgeon said that he was too tired to appropriately care for this patient and could not accept him. Another hospital was contacted but it also refused to take Barnes as a patient. Finally, approximately 4 hours after his arrival, Barnes
was transferred to San Francisco General Hospital. He immediately went to surgery but died 3 days later. News crews began investigating the story before he was even transferred and the series of events became national news.²

The second patient to have a serious impact on the creation of EMTALA was Sharon Ford, a young woman who was in active labor and reported to Brookside Hospital to deliver her baby. She arrived at the emergency department and gave her insurance information to a nurse. On the basis of her insurance information, she was transferred to Samuel Merritt Hospital because this institution had been identified as the indigent care facility which handled the bulk of the Medicaid births. Ms. Ford left Brookside Hospital and drove to Samuel Merritt Hospital. Unfortunately, due to a paperwork error, she was not on the list of insured for her Medicaid program. After an examination determining that she was indeed in active labor and consultation with the on-call obstetrician, she was again referred to another hospital. She was sent to Highlands General Hospital, Oakland’s county hospital. Soon after arriving at Highlands General, she delivered a stillborn infant.²

During this time frame, the press seized upon the issue and touted stories of the many Americans who were injured or died as a result of this practice, dubbed “patient dumping.” Emergency departments became newsworthy not for helping those in need of medical care but for neglecting the needs of the uninsured. The public cried out for change and the United States Congress heard their plea.³

The original legislation on this issue, as it was introduced to the Congress, was quite punitive and included criminal charges for a physician who caused harm to a patient as a consequence of a transfer. Upon its ultimate passing, it was less stringent but still forceful. “One of the most important pieces of health care legislation in the history of our country would be tucked away in the Consolidated Omnibus Budget Reconciliation Act of 1985 as Section 9121, “Examination and Treatment for Emergency Medical Conditions and Women in Active Labor Act.” President Reagan signed the bill into law on April 7, 1986. Effective August 1, 1986, any person presenting to an acute care hospital with an emergency department would have a legal right to health care.²”

For the trauma surgeon, EMTALA plays a part almost exclusively with regard to patient transfers received at the trauma facility. The transferring physician or surgeon at the transferring facility has a legal obligation to stabilize the patient before sending them to another center for a higher level of care. According to the wording of the EMTALA, the emergency department staff must take “whatever medical measures are available and necessary to ensure that the individual’s medical condition will not materially deteriorate during or as a result of transfer from the facility.²”

This fact adds to the complexity of the transfer process for injured patients because “stabilization” may mean a major procedure such as laparotomy or thoracotomy to achieve hemostasis if the patient is actively bleeding. The reluctance of specialty surgeons to take on the task of stabilizing an acutely injured patient is a major factor stimulating transfer of unstable patients. For the accepting trauma surgeon, it is imperative that the best interests of the patient remain in the forefront. It is appropriate to ask the transferring physician or surgeon to attempt hemostasis. On the other hand, if the expected elapsed time to achieve hemostasis exceeds the evacuation time to the trauma center, rapid evacuation with resuscitation in progress is indicated.

It is important to understand the obligations of the transferring facility when discussing patient care and transfer with the physicians involved at the outlying facility.

EMTALA applies to all hospitals with an emergency department that participate in a federal contract to provide Medicare services.⁴ This, of course, means that almost all emergency departments are mandated to follow these directives. Emergency departments are required to screen all patients who request treatment (the request can come from the patient, another person for the patient, or by actions of the patient that would cause a lay person to recognize that the patient needed treatment) for an emergency medical condition. Emergency medical condition is defined as “when the absence of immediate medical attention may be expected to result in the patient’s death or serious harm to either a major bodily function or body part.²

EMTALA mandates that a hospital that has an emergency department and determines that a patient has an emergency medical condition must treat that patient within the capacity of that facility. This includes any ancillary service that would routinely be available to a patient in that emergency department. The patient must either be stabilized in that emergency department or transferred to another facility according to the established guidelines. The appropriate transfer is described as follows:

Appropriate transfer—An appropriate transfer to a medical facility is a transfer—

in which the transferring hospital provides the medical treatment within its capacity, which minimizes the risks to the individual’s health and, in the case of a woman in labor, the health of the unborn child;
in which the receiving facility-
- has available space and qualified personnel for the treatment of the individual, and
- has agreed to accept transfer of the individual and to provide appropriate medical treatment;
in which the transferring hospital sends to the receiving facility all medical records (or copies thereof), related to the emergency condition for which the individual has presented, available at the time of the transfer, including records
related to the individual’s emergency medical condition, observations of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent or certification (or copy thereof) provided under paragraph (1)(A), and the name and address of any on-call physician who refused or failed to appear within a reasonable time to provide necessary stabilizing treatment;
in which the transfer is effected through qualified personnel and transportation equipment, as required, including the use of necessary and medically appropriate life-support measures during transfer; and
which meets such other requirements as the Secretary may find necessary in the interest of the health and safety of individuals transferred.⁵

The Department of Health and Human Services issued interpretive guidelines in 1998 that helped define some of the standards for EMTALA. They defined what a surveyor would look at while investigating if a patient transfer was appropriate by saying that the investigator would look in the medical record to find evidence that: “The receiving hospital had agreed in advance to accept transfers; the receiving hospital had received appropriate medical records; all transfers had been effected through qualified personnel, transportation equipment, and medically appropriate life support measures; and the receiving hospital had available space and qualified personnel to treat the patient.⁶”

Hospitals and physicians alike are responsible for following the mandates of EMTALA. Those who do not may find themselves facing a fine of up to $50,000. If the violation is extremely worrisome, the Centers for Medicare and Medicaid Services (CMS) may decide to terminate the participation of the provider or facility in Medicare. Of course, the patient injured by the EMTALA violation may also sue the physician and facility involved in their care.

HEALTHCARE INSURANCE PORTABILITY AND ACCOUNTABILITY ACT

A patient’s right to privacy and confidentiality has long been understood by the medical profession. The Oath of Hippocrates states: “What I may see or hear in the course of the treatment or even outside of the treatment in regard to the life of men, which on no account must be spread abroad, I will keep to myself, holding such things shameful to be spoken approximately.⁷” A physician, by virtue of his or her role, must be given access to a patient’s most personal information.

The patient-physician relationship relies upon the patient being honest and open with the physician so that the very best diagnosis can be attained. If there was not a promise of confidentiality when giving information to a physician, many people would not give the most personal information nor would they report certain symptoms accurately. To have the best opportunity for complete medical care, patients must feel completely confident that the physician will hold their information confidentially.

The importance of confidentiality has never been more important nor more difficult to ensure than it is currently. In this electronic age where medical information is easily accessed through computer by health care providers, protecting the information from the public is quite a challenge. Physicians, working with many patients in limited time, also find themselves discussing patient information in public areas. This is one of the most common and least acceptable violations of a patient’s confidentiality. Care must be taken when discussing or electronically transferring any information regarding patient care.

The federal government recognized the additional hazards of the information era and enacted the Healthcare Insurance Portability and Accountability Act (HIPAA) in 2003. HIPAA regulations bind all practitioners and health care facilities that practice in the United States and transmit health information electronically. HIPAA actually defines the protected health information (PHI) as “individually identifiable health information that is transmitted by or maintained in any other form or medium, and that relates to past, present, or future physical or mental health or conditions of an individual; the provision of health care to an individual; or the payment from the provision of health care.⁸”

Each facility has developed a means to follow HIPAA regulations and can most likely offer assistance to physicians in establishing their own HIPAA provisions.

Advance Directives

The PatientSelf Determination Act of 1990 (which did not become effective until December 1991) mandated that a patient be informed of the treatments being offered as well as the risks, benefits, and alternatives available to them. The Patient Self Determination Act requires that facilities provide to patients information regarding their rights under applicable state law to make decisions concerning their medical care. Such care includes the right to accept or refuse medical or surgical treatment, and the right to formulate advance directives.⁹

Advance directives amount to written or verbal instructions that will become effective at the time when the patients can no longer speak for themselves. As long as these instructions are drafted according to the appropriate state law, they should be honored by health care providers without fear of legal action from the patients’ family members.

A living will is one type of advance directive. It allows a patient to document the amount and types of care they want in particular medical conditions. A living will is defined as “an instrument, signed with the formalities necessary
for a will, by which a person states the intention to refuse medical treatment and to release health care providers from all liability if the person becomes both terminally ill and unable to communicate such a refusal.”¹⁰ Living wills also allow a patient’s family to follow wishes without second guessing that it is truly what the patient wanted. The use of a living will makes end-of-life decisions easier for everyone involved. Most importantly, the patient receives only the treatment he or she desired to have.

The durable power of attorney and naming of a health care surrogate are other types of advance directives. Each of these documents allows patients to name another person to substitute for them and make health care decisions in their stead. If patients are unable to decide for themselves, the named party has the duty, if they accept, to make the decision they feel the patient would have made in the same situation.

The absence of advance directives creates a situation in which the physicians must rely on someone to make the health care decisions for the patient. In many states, the law allows for the automatic appointment of a health care proxy from an ordered list of family members, some including personal friends at the end of the list.

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