Legal risks are common in the care of hospitalized children. Pediatric hospitalists care for complex patients of all ages with a variety of medical conditions.¹ Many are acutely ill with rapidly changing medical conditions. Hospitalists often find themselves juggling several ill patients simultaneously, and they must make critical decisions rapidly. The risk for error is high, and there is the possibility of a subsequent malpractice suit. In addition, certain hospital processes and situations pose a particular risk for lawsuits, including communication, informed consent, refusal of care, documentation, altering the medical record, use of consultants, treatment of incidental findings, patient confidentiality, and legal responsibility during discharge. The legal obligations surrounding each of these situations are described in this chapter.

The hospitalist movement is relatively new, and little information has been generated regarding claims against these specialists. In general, pediatricians are less likely to be sued than other specialists, but they have the highest average indemnity payments ($521,000/claim) of all specialties.² Evidence suggests that hospitalists reduce malpractice claims in the inpatient setting by improving quality of care and patient and parent satisfaction.^3,4 In addition to improved quality of care, hospitalists have demonstrated enhanced efficiency.⁵ They often become team leaders in their hospitals, attempting to optimize quality and continuity while delivering evidence-based care for acutely ill patients.^6,7

Hospitalists’ presence in the hospital enables the discovery and demonstration of best practices in detecting errors.⁵ Tenner’s retrospective study found that the quality of care of critically ill patients improved after hours, when more experienced physicians provided care at the bedside; more specifically, patients cared for by pediatric hospitalists (general pediatricians who had completed training) had improved survival rates compared with patients cared for by pediatric residents who were supervised from a distance by intensivists.⁸ Thus, the use of hospitalists may lead to safe care, fewer adverse outcomes, and fewer malpractice suits.

Like all physicians, hospitalists may face legal action when pediatric patients in their care have bad outcomes. When a lawsuit is instituted, the plaintiff must show that the physician had a duty to the patient, breached that duty, and did not meet the standard of care. The plaintiff must then show that this breach caused damage or injury to the patient.⁹

Good communication between the hospitalist and the patient and family is essential to prevent lawsuits. Poor communication can lead to angry feelings, omission or distortion of important information, and subsequent injury to the patient. Effective communication between the primary care physician (PCP) and the hospitalist is also crucial.¹⁰

One study showed a direct relationship between physicians’ enhanced communication skills and fewer malpractice suits.¹¹ Another study of families that sued physicians (after infants suffered permanent injury or death) found that most were dissatisfied with physician-patient communication. They believed that the physicians would not listen to them (13%), would not talk openly (32%), attempted to mislead them (48%), or did not warn them about long-term neurodevelopmental problems (70%).¹² The patient and family must perceive a caring attitude, openness, professional integrity, and standards of excellence; a sense of trust is also crucial. Patients are not always aware of the physician’s competence, but they are keenly aware of his or her manner. They remember how the physician looked, acted, spoke, and listened; whether he or she was neatly dressed; and whether the physician was pleasant or disinterested, serious or cavalier, haughty or condescending, polite or discourteous. Good eye contact and body language are important.¹³ No matter how tired, frustrated, or stressed the hospitalist feels, this should not be communicated to the family. Establishing good rapport with the family can sometimes be difficult, but it is essential.

The hospitalist should try to appear unhurried and ready to listen. An adverse outcome—even if inevitable—coupled with the parents’ feeling that the physician was rushed or was not sincerely interested in the child may provoke a lawsuit. Thus, when meeting with families, it is advisable to introduce oneself, shake hands, and sit down in the examination room. This gives the parents the message that, at least for the next few minutes, they have your undivided attention, no matter how many other children are in the hospital. Studies have shown that if the physician sits down in the presence of the patient, the perception of the time spent with the patient is doubled.^14,15

The hospitalist must also establish rapport with the child. Avoid casual teasing, condescension, and talking about the child without attempting to include him or her in the discussion. Be careful not to violate modesty in school-age children. Speak at an age-appropriate level, and remember that even young children understand far more than they say. Try to be flexible, but do not offer choices when none exist.⁹

Keep the family informed about necessary procedures, suspected diagnoses, and the child’s overall progress. In addition, help the family understand the makeup of the health care team that is caring for the child. This is especially important in a teaching hospital, where residents, fellows, consulting physicians, and several nurses may participate in patient care. A recent American Academy of Pediatrics (AAP) policy statement recommends that providers conduct rounds in patients’ rooms, with family members present.^16,17 This enhances communication and may reduce errors.¹⁷

At times, parents might insist on obtaining certain laboratory tests that the medical team believes to be unnecessary. The medical staff must then calmly and skillfully explain why such tests may not be needed. This need not become a point of contention if the parents recognize the physician’s sincere interest in the child. One study showed that patient satisfaction with care was related not to whether patients got antibiotics for respiratory infections but rather to their perception of the amount of time the physician spent explaining the illness and their understanding of the treatment.¹⁸ Discuss questions about pain management and convince the parents that everything possible is being done to relieve their child’s pain. Encourage parents to stay with their child for procedures whenever possible. Many parents can nurture the child through a painful procedure if they know what to expect.^9,19

Take care when discussing the patient’s management with other staff members in front of the family. Parents should not witness disagreements over plans for management, such as might occur if one staff member suggests ordering a specific laboratory test and the hospitalist disagrees. Likewise, it is not appropriate to reprimand or correct a nurse or physician-in-training in view of the family. This would undoubtedly create a feeling of uneasiness.

In some cases, communication with a parent is particularly difficult. For example, parental anger can be predicted when they are informed that a report for suspected child abuse is being filed. Remain nonjudgmental in these circumstances. Tell the family that the physician is required by law to file such a report and that the medical staff is not accusing anyone of abuse.⁹

Finally, if a harmful medical error is made, explain to the family what has happened. It is best to be honest with parents about the mistake. If an error is merely suspected, do not admit negligence but rather explain that all will be done to investigate the situation and improve results.²⁰

Lawsuits may be avoided if the physician is honest and forthright. As in politics, an attempted “cover-up” makes the situation worse. In all cases, follow hospital policies for disclosure of a medical error.

Parents have the right to be informed about their child’s medical care and to give consent for treatment. Parental rights are limited, however. For instance, adults can refuse treatment—even life-sustaining treatment—for themselves, but not for their children. Parents must act responsibly and in their child’s best interests. If they are neglectful or abusive, the courts can relieve them of decision-making and, if necessary, custody.²¹

Most states define informed consent as providing a description of the procedure or treatment and the risks and alternatives in such a way that a reasonably prudent person would be able to make an informed decision whether to undergo that procedure or treatment. Patients and parents are entitled to know the diagnosis, the nature and purpose of the proposed treatment or procedure, the risks, consequences, and side effects of the proposed procedure, reasonably available alternatives and their risks, and the anticipated prognosis without treatment. Be sure that the patient or parent understands the information given.^21,22

In a true emergency, informed consent is not needed. When a hospitalist provides care in the emergency department, the legal guardian may not even be present. For an unconscious or severely injured child, no consent for treatment is necessary because it is assumed that a reasonable parent would want the physician to care for the child immediately. If it is not clear that a true emergency exists, it is generally best to treat the patient and get consent later.²¹ A physician is more likely to be sued for failure to treat without consent than for providing reasonable treatment without the guardian’s knowledge or approval. However, do not give a blood transfusion to a reasonably stable child or intravenous contrast material for a computed tomography scan if the risks and benefits have not been explained to the parents. It is conceivable that a patient could suffer a reaction to these procedures, and the guardian may sue the physician for failing to inform him or her of the risks involved.⁹ No patient or parent should be forced or influenced to make a specific decision; however, no decision by a parent is completely free of outside influences. Most parents need and want the physician’s opinion to help them decide what is best for their child. Finally, the physician has an ethical obligation to try to inform a minor child about the proposed treatment, to describe what he or she is likely to experience, and to get his or her assent to care, if possible.^21,22

Consent forms are widely used at most hospitals and should be written at an appropriate level for most patients or parents (generally, a sixth- to eighth-grade reading level).²¹ Give parents the opportunity to ask questions after reading the form. Take language barriers into consideration. Parents usually sign a general consent form at the time of presentation to the hospital that allows for a general evaluation and treatment of the child. However, parental signing of such a form does not equate with informed consent. The patient or parent can still claim that the risks and benefits were not adequately explained.^9,22 Patients and parents may not recall what was told to them when they were emotionally stressed. A signed consent form may provide some legal protection for the physician, because it documents that steps were taken to inform the parent about a procedure. However, a signed form is of little value unless a discussion about risks and benefits took place.²² Clear documentation in the record, noting what was explained to the parent, may be just as valuable as a signed consent form. Remember, informed consent is a process, not a paper. Table 13-1 summarizes procedures for assisting parents with informed decision making.

Despite all efforts, some patients or parents refuse treatment or leave the hospital against medical advice (AMA). This usually occurs when the patient or parent is angry, afraid, or disoriented or has certain religious beliefs. Emancipated minors and parents generally have the right to refuse treatment for themselves or their child. However, when a patient or family leaves the hospital without a full evaluation and complete treatment, everyone involved may suffer. The child may have persistent or worsening symptoms from a medical problem that has not been addressed. Likewise, the physician usually feels a sense of failure and frustration when advice and recommendations are not heeded. The hospital and physicians may be subjected to a lawsuit if the patient later suffers serious morbidity or dies, even if the family left voluntarily or signed out AMA. Therefore, the goal should always be to keep the child and family from leaving prematurely.^9,23

UNDERSTANDING THE PATIENT

Some patients or parents wish to leave the hospital because they are angry about a long wait for medical treatment. Some may fear a prolonged or expensive hospitalization, or they anticipate unnecessary and painful procedures for their child. Others are afraid to learn of a serious diagnosis or are anxious about children left at home. Those who do not speak English may be especially frightened. Still others may fear teaching institutions in particular because they believe that students or residents “practice” on patients.⁹ Understandably, families may be less trusting of a hospitalist physician with whom they are not familiar.

PROVIDING TREATMENT

If a true emergency exists, provide prompt medical intervention even over parental objections.^21,24 It is extremely unlikely that the physician will be successfully sued for intervening and delivering care to a child in an emergency situation.²² In fact, the legal risk is much greater if emergency care is not given.

Try to learn why the patient or family wishes to leave the hospital. If the patient or parent seems angry, allow him or her to express concerns without interruption. Remain courteous, concerned, and flexible in the treatment plan. It is never wise to challenge patients to sign out AMA, and they should not be threatened with a call to security officers. Call security only if necessary to maintain order.⁹

A social services worker may be extremely helpful in difficult cases. Further, a telephone call to a familiar PCP may allay the parent’s fears and convince the family to follow the proposed treatment. If a language barrier is a factor, provide a competent translator. Be sure the parents understand the risks and benefits of treatment and the risks of refusing treatment. Allow the patient and family to consider options in a low-pressure atmosphere so that they can make a rational decision.

DOCUMENTING EVENTS

If a parent still wishes to leave the hospital despite all efforts to reach an agreement, ask the guardian or emancipated minor to sign a statement releasing the doctor and the hospital from all liability. Such statements may have limited usefulness, because parents can later claim that they did not fully understand the risks involved in leaving AMA. However, a signed statement witnessed by one or two staff members may shift some responsibility to the parents in the event of an adverse outcome.⁹

Document in the hospital records exactly what was done for the child and what was told to the parents. Specifically, if the child was examined, record the findings and impression of the limited evaluation and what tests or treatment was contemplated. Also, document the parents’ reason for leaving AMA, as well as the risks of refusing treatment as they were explained to the parents. Tell parents (and document) that they can always return to the hospital for reevaluation if they change their minds or if the child’s condition worsens. It may be helpful to volunteer the names of alternative hospitals and doctors and to offer to arrange transportation, if feasible. This shows a sincere interest in the patient and may prevent litigation. Finally, if a parent refuses to officially sign out AMA before leaving the hospital, carefully document this, with a witness, in the medical record.⁹

In some situations, the patient cannot be permitted to leave the hospital under any circumstances. If the guardian is disoriented or intoxicated and cannot understand the risks and benefits of treatment or the consequences of refusing care, do not allow the patient to leave. A life-threatening medical problem also mandates immediate medical care. It is always better to win the cooperation of the parents, but if they refuse, the staff is justified in treating the child. Report the refusal to the proper authorities as medical neglect, and seek a court order while delivering emergency care. If it is unclear whether a life-threatening situation is present, err on the side of treatment.^9,21,24

Similarly, in a case of suspected child abuse in which the perpetrator is unknown, do not release the child, despite the parents’ wishes or protests. In this situation, call the security staff to prevent the parents from removing the child from the hospital. The staff must contact the hospital lawyers, administrators, or a judge on emergency call to seek a verbal temporary restraining order. Record the conversation with the judge in the patient’s chart, including the specific actions authorized. The procedure to obtain court permission to treat a child may vary in different locales, and the hospitalist should be familiar with local and hospital policies.⁹