How to limit your risk of legal liability

November 1, 2018

Pediatricians deal daily with parent and patient refusals of recommended care. Here’s how to protect yourself and your practice from legal repercussions.

Pediatrician James Scibilia, MD, FAAP, says he thinks most about the issue of professional liability when patients or their families refuse recommended vaccines.

Among the burning questions, says Scibilia, who presented “Provider, protect yourself! Limiting your risk in the face of nonadherence or refusal (F2010)” during the September 2017 American Academy of Pediatrics (AAP) National Conference, is this: Might parents say they don’t want to vaccinate their kids but later claim they weren’t fully informed? Or, when parents refuse vaccines and their children get sick, are pediatricians responsible for the potential risk to others of having unvaccinated children in the office? Finally, what does refusal say about the doctor-patient-family relationship? Should pediatricians continue to see those patients or sever the relationships?

Hot-button topic

The authors of 1 study called routine childhood immunization refusal among the most divisive issues in pediatrics today,1 and it’s an issue most pediatricians are increasingly encountering. In a 2013 survey of more than 850 pediatricians published a few years ago in Pediatrics, more than 87% of respondents experienced parental requests to delay at least 1 age-appropriate immunization. That was up from 74.5% in 2006.2

Those same pediatricians estimated an average 18.7% of patients requested to delay 1 or more vaccines.2

What pediatricians need to know

Many pediatricians think if they don’t immunize a patient and the patient gets sick, the family will sue the pediatrician.

That does happen, according to Scibilia. “There are cases in California where physicians did not immunize a patient because a parent refused; then a claim was made by the parents that, if they had known that this illness could have killed their child, they would have received the vaccine. The [parents] won those cases,” he says.

Documentation can help to shield a pediatric practice from liability from vaccine refusers, Scibilia says. “Pediatricians need to make sure to document that patients have been informed about the risks of not getting vaccinated,” he cautions.

The AAP offers a comprehensive and free refusal-to-vaccinate form that pediatricians can use. It lists the vaccines that patients don’t want and the associated risks, Scibilia says.

It’s important to have patients fill out and sign that form or something like it in the pediatrician’s office, he notes. That way, they acknowledge potential risks of their decision. Pediatricians should keep the signed form with the patient’s records, he says.

Another important way in which pediatricians can legally protect themselves and their practices is to have a mechanism in place for identifying patients who are not immunized. Flagging those patients allows pediatrician practices to see unimmunized children more quickly when they’re sick, as well as take steps to avoid contact among those children and immunized patients and families.

Scibilia says he knows of no litigation with the premise that an unimmunized child in a pediatric practice infected others. However, it makes sense, he points out, that there’s liability risk for the pediatrician if he or she doesn’t act quickly to treat a sick, unimmunized child.

“An unimmunized patient that calls you with a fever may need to be seen a lot more quickly than a fully immunized kid with a fever,” Scibilia says. “I think the risk for the pediatrician isn’t so much on the side of being sued because he didn’t give the vaccine; it’s more not appropriately identifying people who are undervaccinated in their offices and addressing the issue appropriately with them when they’re sick.”

Pediatricians with electronic health records can add alerts that indicate if a patient is unimmunized or underimmunized. Practices using paper charts should use sticky notes or something that is highly visible for letting the staff and doctor know a child isn’t fully immunized or immunized at all.

Interestingly, not having children vaccinated can work against parents in a court of law. There have been cases in which vaccine refusal was the reason for parental neglect under child welfare laws, according to 1 study.3 “Some states have a legal precedent for considering parental vaccine refusal as medical neglect, but this is based on a small number of cases. Each state should clarify whether, under its laws, vaccine refusal constitutes medical neglect,” the authors concluded.

Severing the doctor-patient relationship

Some pediatricians keep seeing vaccine-refusal patients and families while continuing to try to convince the families that the benefits of recommended immunizations outweigh the harms. However, other pediatricians refuse to see those patients, dismissing the patients entirely from their practices.

In 2006, 6.1% of pediatricians in the survey published in Pediatrics said they always dismiss patients for continued vaccine refusal. By 2013, 11.7% of pediatricians surveyed said they always dismiss these patients.2

“The Academy suggests that pediatricians try to maintain a working relationship with families that don’t want to vaccinate, but [the AAP] also acknowledges in its position paper that if you really feel this is interfering with the trust that you have with your patients-if you feel you have a circumstance where you’re recommending something that’s really super important for patients’ health and they’re choosing not to participate-you can sever that relationship,” Scibilia says.

Pediatricians need to go about severing relationships with patients in the correct way to avoid liability, according to Scibilia.

“You can’t just tell somebody ‘I’m not going to see you’ and walk away,” he says. “Most states have requirements where you have to see the patient for a certain period of time [for emergencies] after you ask them to leave the practice. Some insurance carriers have different time frames, when they require you to see their members [for emergencies] after you’ve severed the relationships,” Scibilia says.

Pediatricians severing relationships should use the longest amount of time mandated by their states or contracts to be on the safe side. In addition, ending a doctor-patient relationship needs to be done in writing.

The correspondence should document that the pediatrician has severed the relationship and will provide emergency care for the amount of time required by the state or contract. If pediatricians don’t follow through and care for the sick child, parents or others can make an abandonment claim against the doctor.

The bigger care-refusal picture

Scibilia says he thinks the concept of patients who refuse care is “informed refusal.”

“We do informed consent all the time. Informed refusal offers the same things informed consent does. You have to identify what it is that you’re recommending. You have to explain to the parent or the patient what the benefit and risk is of not doing that procedure. You have to make sure that you’ve documented that the patient understands that there could be a bad outcome with their refusing. Then, have them sign off on that, like you would informed consent for surgery or anything else,” he says.

Many states, Scibilia says, allow informed refusal as a legal document in a court proceeding. Still others might allow it to be presented in court as a signed document and proof that the parents understood their decisions.

Medication refusal is a different issue and is something pediatricians often encounter. “Patients who have chronic illnesses or patients with mental health problems are especially susceptible to refusing medications,” Scibilia says. Pediatricians, however, have to deal with the issue differently than physicians who see adults because of the proxy issue.

“We get permission for care through proxies. If you don’t have a proxy, you can’t really do anything with the patient unless it’s a life-threatening situation,” Scibilia says.

If parents refuse a treatment that the pediatrician feels strongly is in the child’s best interest, the pediatrician can take up the case with parents in court.

“Usually, in those kinds of cases, the only time that you can really go to court for a case where a parent refuses medication or treatment is in a circumstance where [all the medical professionals involved] agree that the treatment is beneficial, and that the parent’s refusal creates a risk to the patient’s life or ability to function,” he says.

Pediatricians deal with parent and patient refusals of recommended care sometimes daily, Scibilia says.

 

“It’s such a common scenario that I think it’s important that we recognize there are risks to that,” he says. “How to protect ourselves from that risk is by informing patients and by making sure we understand what our obligations are to our patients as opposed to the parents.”

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