Trauma, Medicine, and the Law
Trauma team and law enforcement activities repeatedly intersect in various locations for a variety of reasons in the course of mutual and integrated responsibilities:
• System and organizational regulation and review
• Preventive strategies
• Prehospital care and patient protection
• Disaster planning and response
• Emergency center
• Operating room
• Intensive care units and hospital nursing units and clinics
• Office practice
• Patients complaints and undesirable results
• Formulation of patient care policy and laws
• Licensure
• Quality review and reporting obligations
• Disaster medical response
• Professional liability
• Testifying in court/depositions.
This chapter addresses intersection/interaction among trauma, forensic medicine, and the law. Forensic and legal issues surface daily in trauma care but may be overlooked or unidentified due to the urgency of the situation. Health care providers are able to and, indeed, need to provide lifesaving measures and “think forensically” at the same time. By considering the forensic and legal implications, evidence that may be vital to the outcome of a legal case is preserved without impeding appropriate medical care.
CLASSIC KEY POINTS
(Adapted from Weigel, Charles in Trauma, Moore, Feliciano, Mattox, 2nd edition).18
1. When in doubt and time and life are running out, TREAT
2. Have specific instructions for judicial intervention and emergency psychiatric detention readily available in the trauma center.
3. Be mindful of Hippocrates admonition, “which ought not be spoken of abroad, I will not divulge, as reckoning that all should be kept secret.”
4. Compliance with local reporting laws is essential to the avoidance of potential criminal penalty and civil liability.
5. The police department’s duty is containment and control; the trauma team’s is care and cure. To each his own.
6. Avoidance of malpractice claims depends on the exercise of skill based on knowledge of reasonable, ordinary, prudent physicians under similar circumstances.
7. An unfavorable outcome does not, of necessity, imply or result in a legal lawsuit; if such were the case, 50% of all attorneys in court cases would be so guilty.
8. Standing orders, best practices, protocols, guidelines, and electronic recommended practices all have value, but the ultimate hallmark of the professional is the exercise of sound judgment in any particular case.
9. Records must be made for the patient’s benefit, not the attending physician, hospital, attorneys, or quality surveillance. Records must be complete, accurate, timely, legible, and honest. Corrections to records can be made, dated, and timed, but the original entry must not be removed.
10. Difficulty and recurring problems can be more efficiently resolved through judicious preconsideration and planning.
11. The physician is an integral and essential part of the judicial system, and knowledgeable participation will benefit the physician, his or her patient, and health care in general.
12. Commonsense and human care and communication can be as important insulation factors from legal liability as good technique and clinical care.
13. Freely use consultation and escalation of concerns when indicated. There are always persons, processes, and resources to provided unknown, unfamiliar, or clarified information.
Over 1.6 million people lose their lives throughout the world each year as the result of violence.1 Countless others sustain injury. Violence and the social disruption that follows are addressed by everyone involved in trauma care. By understanding the law and the health care forensic implications of the law, identifying and preserving evidence during the course of evaluation and treatment, and accurate documentation of all aspects of wounds/care, the surgeon not only is an indirect advocate for the patient, but also provides much-needed information that will be used by law enforcement and the justice system.
CONCEPTS, PRINCIPLES, AND DEFINITIONS
Although not standard in every political jurisdiction, some general principles and commonly used definitions are cited in this section. Often, a legal and a medical definition or concept might differ. Such variances in perception are important to medical personnel interacting with forensic and legal personnel, especially in a courtroom, deposition, or adversarial situation.
• Abandonment—Terminating care of a patient without assuring that a continuum of the same or higher level of care exists
• Assault and/or battery—Unlawful touching of a person or patient without appropriate consent for that contact
• Confidentiality—Protecting medical information on any patient under the care of a hospital, nurse, doctor, or other ancillary personnel
• Competence—The ability of a patient to understand questions asked them by health care personnel, as well as understand the various aspects of treatment recommendations and decisions
• Negligence—Deviation from an accepted standard of care rendered by a similar practitioner in similar situation
Duty to Treat
In the “modern” version of the Hippocratic Oath, the phrase, “… there is the obligation to all my fellow human beings to treat those of sound mind and body as well as the infirm, …” establishes the tone of the regulations for a duty to treat any patient who presents with an immediate life-threatening condition.2 Wide interpretation discrepancies exist regarding “duty to treat,” depending on urgency of clinical condition, availability of appropriately skilled clinician, availability and infrastructure of treating facility, and availability of higher level of care within the geographic area. Once a patient enters a treatment facility and on initial evaluation is found to have an immediate life-threatening condition, the obligation to continue the treatment is understood, as is the now established physician/patient and hospital/patient relationship. That relationship continues until one or the other terminates, by mutual consent, services are no longer needed, or the physician properly withdraws from the relationship.3 The Emergency Medical Treatment and Active Labor Act (EMTALA), passed by Congress in response to hospitals refusing to treat patients based upon ability to pay, requires hospitals and physicians to provide a medical screening examination and stabilizing treatment for patients who present with an emergency medical condition.3,4 The physician’s duty to treat and/or stabilize the patient for transfer for a higher level of care is clear. Should a physician misrepresent a patient’s condition to facilitate a transfer for any other than higher level of care, civil penalties exist (Legal Information Institute), including fines and exclusion from participating in Medicare and Medicaid programs.3,4 The Americans with Disabilities Act of 1990 prohibits the denial of individual access to health care based on a disability, unless providing said care poses a direct threat to the health and safety of others.3,5 Implicit in these laws is that inability to pay is not an acceptable (or legal) reason for nontreatment of any patient presenting with a life-threatening condition.
The duty to treat a patient does not change, even if the patient is the perpetrator of a violent crime. The fact that the patient was injured or injured others while driving intoxicated or while wielding a gun is irrelevant. The physician has a duty and ethical obligation to treat the patient, regardless of the situation surrounding the injury.
Consent
Numerous terms and concepts apply to the many consent issues involved in patient care.
• Express consent—The patient gives permission for recording his or her history, physical examination, and appropriate tests, with appropriate treatment. The doctor (preferably) or other health care worker describes the reason for examination and treatment, the treatment to be rendered, the risks of such treatment, and possible side effects and complications. If in writing, the expressed consent should include the doctor’s name, the location of the treatment and with the appropriate date and time of the treatment.
• Implied consent—Under emergency conditions, when the patient’s clinical condition prevents him or her from speaking for themselves or when a surrogate consent cannot be obtained, it is assumed that if a patient or surrogate could speak, they would desire lifesaving evaluation and intervention.
• Waived consent—Under some investigational review board (IRB)-approved research, where a form of treatment does not have scientific universal standards and a new treatment is being evaluated for emergency conditions when there is no time to obtain informed consent, the United States Food and Drug Administration (FDA) has outlined the conditions for wavier of consent. In such circumstances, it is appropriate to inform the patient and the family as soon as possible after the emergency and then obtain, in writing, the fact that the patient and/or family understands and gives consent, after treatment.
• Surrogate consent—Both state and hospital policies define who may give informed consent for a patient whose clinical condition does not allow him or her to speak for themselves or who, for a variety of reasons, cannot understand the implications of information given to.
• Refusal of consent—Adult patients who fully understand the implications of proposed treatment have the right to refuse to be examined or treated. Under some circumstances, local law or hospital policy requires that the local ethics committee or a court-appointed ad litem become involved, especially if the adult refusing treatment has minor children or is mentally incompetent. If treatment is refused, it is important to adequately document the conditions of the refusal and names of all involved in advising and interacting with the patient.
Except in urgent, life-threatening situations, at its simplest, consent is required anytime a health care provider intends to render care to a patient.6 The physician’s (and hospital’s) duty extends beyond obtaining a patient’s signature.7 Informed consent includes providing sufficient information to the patient about the procedure, the risks and benefits, and any alternative treatments for an “informed” decision to be made.6,7 As outlined by the Joint Commission for Hospital Accreditation, the consent process has several components, including the nature of care, medications, procedures, possible risks and benefits, and any limitations on confidentiality of information learned from or about the patient.8 As a patient enters an emergency center or is admitted to the hospital, consent to be evaluated and treated is usually routinely obtained. Many patients do not completely read the “fine print” above the signature block, often being eager to get on with an emergency evaluation. Beyond this initial consent and signature, additional informed consent is required for more detailed treatment (such as an operation), once that more specific treatment is deemed necessary.
There are two types of consent for competent patients—express and implied. Express consent may be either oral or written,6 although written and signed documentation is preferable, including date, time, physician name, location, and procedure. Oral (without any written or electronic documentation) consent is difficult to prove/defend in a court of law, whereas a written and thoroughly documented, informed consent is difficult to dispute in that same setting. In emergency situations, consent is presumed or “implied,”6 that is, when a patient presents with traumatic injuries or severe medical condition such that he or she cannot understand or communicate, it is presumed the patient would want treatment unless there is a living will or an advanced directive specifically requesting no heroic lifesaving measures be undertaken.8 Rarely does the trauma patient present with such documents, but it may occur, and the trauma team should be made aware immediately.
Often, only after a blood transfusion has been initiated is the team made aware that the patient or his or her family is opposed to such intervention. The members of the treating team should, if time permits, attempt to ascertain the presence of any advanced directive or official treatment requests prior to initiating treatment. If an objection to treatment has been established, that treatment must not be started, and if already begun, must be stopped. The only recourse the treating team has in these circumstances is to seek legal intervention, which time does not often allow.
In obtaining consent, there are several considerations for the surgeon. In certain circumstances (emergency care, emancipated minor), minors, for example, may provide consent without parental involvement.9
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