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Ms Zimlich is a freelance writer in Cleveland, Ohio. She writes regularly for Contemporary Pediatrics, Managed Healthcare Executive, and Medical Economics.
More children are being brought to pediatricians for nonurgent care by adults who are not their legal guardians. What can a pediatrician do to reduce his or her risk of liability when treating children with "consent by proxy"?
When a child’s life is at stake, pediatricians rightfully rush to action-even if there isn’t someone present to consent to treatment of the child.
What about in everyday practice? The daily life of families is changing, and more often persons other than parents are bringing children to medical appointments. Should you treat these children, and how can consent be provided?
In a recent report published in Pediatrics, the American Academy of Pediatrics offers guidance on treating minors brought in by individuals who are not their legal guardians for nonurgent medical care.1 In these cases, the grandparents, childcare provider, or other caregiver may give consent by proxy for care, but this consent can also open the door to liability exposure for the physician.
Before providing any nonurgent medical care for a minor without the legal guardian present, physicians should address a number of important questions. First, who has the legal right to consent to care for the child and to whom and in what circumstances can the power of consent be delegated in their absence? What are the limitations on the right to delegate consent for the minor, and how is authorization of consent verified and documented? Physicians should also be aware of when and how often proxy consent should be updated.
This report addresses the specific liability risks of providing nonurgent medical care without permission or consent directly from the child’s legally authorized representative (LAR).
“Pediatricians should use their good judgment in balancing the patient’s healthcare needs with their own need for legal protection. Because pediatricians are primarily concerned with their patients’ welfare, discretion should be used to differentiate situations in which care can be delayed pending appropriate LAR consent from situations in which the pediatrician should provide care and accept the risk of legal repercussions,” the guidance states. “Careful planning and good office policies can minimize those instances.”
Jonathan M Fanaroff, MD, JD, FAAP, FCLM, associate professor of pediatrics at Case Western Reserve University School of Medicine, director of the Rainbow Center for Pediatric Ethics, co-medical director of the Neonatal Intensive Care Unit, Rainbow Babies and Children's Hospital, Cleveland, Ohio, and lead author of the guidance, says pediatricians providing nonurgent care to a patient without a parent present need to think about the process by which the legal decision-maker delegates to another person the right to consent to medical treatment for the child.
“Children are often brought to the pediatrician for nonurgent care by caregivers other than the parents, such as an aunt, grandparent, or nanny,” Fanaroff says. “In these situations, it is important for the pediatrician to have considered how to establish rules for medical consent and notify families of these policies.”
The guidance, updated from a 2010 version, addresses the legal and ethical obligations pediatricians have to obtain consent and care for pediatric patients.
“Hopefully this report will aid practices to establish clear rules for medical consent in nonurgent proxy situations and appropriately convey those rules to families in order to allow pediatric practices to both meet their ethical obligations and minimize liability risks,” Fanaroff says.
All states allow certain services to be provided without parental consent, but these are generally limited to services that are reproductive in nature. In most other cases when an LAR cannot be present, a physician is required to obtain consent for medical or surgical tests, procedures, or treatment of a minor. Consent can be obtained from the LAR by phone if the minor is brought in by another adult, but having a witness confirm and document the consent is best practice. Emergency cases are another story, and physicians are usually free to treat the minor without consent and without worrying about liability.
In nonurgent cases, however, even a physical exam can be grounds for legal action claiming negligence or medical battery, according to the guidance.
“In general, battery is the unsolicited physical touching of a person. Medical battery may be alleged if treatment is provided without appropriate informed consent, when a procedure is performed that is substantially different from the one for which consent was given, when the treatment exceeds the scope of the consent, or when a physician different than the one to whom consent was granted performs the procedure,” the report states. “A physician may face a battery claim even if the treatment or procedure may have been performed without any negligence. When a plaintiff (person who files the lawsuit, usually parents on behalf of their child) is not satisfied with the results of the medical treatment or procedure but is unable to prove negligence in litigation against the physician, the plaintiff may resort to the theory of battery to seek a recovery.”
Even if no harm can be proven, damages may be awarded in these cases. More serious cases can also carry punitive damages that might not be covered by malpractice insurance. These charges may also be accompanied by discipline from licensing boards, according to the guidance.
Whereas liability for treating without consent by LAR hasn’t been a big problem for physicians so far, inadequate informed consent is a growing issue, especially when those providing consent have limited understanding of English or poor health literacy. To this end, the guidance urges that consent by proxy be well understood and that physicians not ignore the risks involved.
Care that is provided in the best interests of the child generally carries low liability risk, even without appropriate consent. However, some factors-such as language barriers or poor understanding of healthcare procedures-may increase liability risks, and pediatricians should anticipate situations that might require consent by proxy and develop office policies that manage the risks. The guidance offers several suggestions for office policies that support consent by proxy:
• Establish a policy to determine whether the practice will even treat minor patients without an LAR present. It is helpful for all physicians in a practice to adopt the same policy.
• If the practice decides not to provide nonurgent care without an LAR present, then the office should have an information sheet available to provide to the patient and the person who brought him or her. Existing and new patients should be informed about consent by proxy policies in advance.
• If a practice does decide that it will provide nonurgent care without an LAR present, a policy and procedure guide should be created to spell out the LAR’s duties to provide consent by proxy. Pediatricians should educate staff members and schedulers about the policy. Templates addressing the key questions of by proxy consent are also helpful for front-office staff to use.
1. Fanaroff JM; Committee on Medical Liability and Risk Management. Clinical report: Consent by proxy for nonurgent pediatric care. Pediatrics. 2017;139(2):e20163911.