Cover story

Malpractice and emergency care: Doing right by the patient—and yourself

By Steven M. Selbst, MD, and Joel B. Korin, Esq

Providing emergency care to children is a special challenge with risks for both patient and pediatrician. Attention to some basic precautions promotes good medical care for the child and heads off legal problems for the physician at the same time.

Malpractice lawsuits are an unpleasant and undeniable part of medical practice. They are not necessarily inevitable, however.¹ Many lawsuits are predictable and preventable, just like many childhood diseases and injuries. If we begin to understand the etiology, epidemiology, and pathology of malpractice suits, we may find ways to avert them.

Issues of consent for minors and problems such as child abuse and neglect pose difficult medical and legal questions. Physicians who care for acutely ill and injured children must therefore be aware of relevant laws regarding their care. In addition, emergency physicians and pediatricians who are called to the emergency department (ED) to treat children must be familiar with the diagnoses that pose the highest risk for harm and litigation.

Providing emergency care to children is a challenging endeavor. Medical malpractice cases disproportionately involve the ED. In one pediatric study, the ED accounted for 45% of 262 hospital-related cases alleging malpractice.² Other studies have shown that the ED is the source of 16% to 17% of all hospital lawsuits.^3,4 Physicians are involved in 88% of ED claims, and nurses account for 7% as the principal participants.⁴ Prehospital care providers (EMTs and other rescue personnel) are less likely to be sued for malpractice, but they are also at risk.

No one is immune

Surveys of the American Academy of Pediatrics membership have shown that one third of pediatricians have been named in a malpractice suit, and many of these cases involved acutely ill or injured children. House officers are at particular risk. About 10% of suits against pediatricians originated when the physician was in training.^4,5 This is understandable because residents with incomplete training often provide care to the most complicated patients in the hospital. One study showed that a disproportionate number of malpractice claims originated when patients presented to a Chicago ED after midnight, while no attending doctor was present.⁶ In another study, the presence of an attending in the ED reduced malpractice claims by 18%.⁷ Other investigators found that house officers or moonlighters were involved in 25% to 50% of legal actions originating in the ED while well-trained, experienced doctors accounted for the remaining lawsuits.^3,8 In short, anyone who cares for children, especially in an emergency department, is at risk of being sued. Years of experience and proper training may help reduce litigation, but no one is immune to a malpractice suit.

Physicians caring for acutely ill and injured children are likely to be sued when a poor outcome occurs. They can be sued if they make a mistake or if others working with them, such as nurses or respiratory therapists, act incorrectly. They can be found at fault if they release too much information about a child and violate the patient's right to privacy or if they fail to report information about a child when indicated, as in the case of child abuse. They can be liable for not doing enough for a patient, for doing something incorrectly, or for doing too much when it violates the family's wishes.

The physician may be found responsible not only for the patient's outcome but also for the child's family or other contacts who might suffer from a missed diagnosis. If a psychiatric patient is discharged and later injures another individual, for example, or a child with meningococcemia is misdiagnosed and spreads the infection to another child after discharge, the physician can be sued for injury to a child he or she never treated.

A legal time bomb

Each state has its own "statute of limitations" that specifies the length of time a person has to bring a suit for an alleged injury. In most states, the statute of limitations for adults is two or three years from the time an injury that resulted from alleged negligence is discovered, or should have been discovered. When this time has passed, a suit can no longer be brought, regardless of its merits. For children, the time period is extended because they cannot initiate legal action on their own behalf. In many jurisdictions, the time period does not begin until an injured child has reached the age of majority (18 to 21 years old). Thus, a patient may bring a suit against a physician for events that took place as long as 20 years in the past.¹

If, for example, an infant with meningitis develops complications from a delay in diagnosis or treatment, the family is not obligated to initiate a lawsuit within two years of the illness. Instead, they may begin litigation within two or three years after an injury, such as delayed development, is discovered. That could be when the child begins school, five or six years later. Some states limit this time period, but it usually extends seven to eight years or more after the injury should have been discovered. If the parents fail to initiate a suit, the patient may decide to sue when he or she reaches the age of majority.¹

What leads to malpractice suits?

Diagnostic errors are the most common misadventures in the practice of pediatrics and emergency medicine. About one half to two thirds of malpractice suits in the ED result from misdiagnosis. The most frequent error made by emergency physicians is a grossly deficient examination related to the chief complaint.³ Other important errors that result in malpractice suits are failure to order appropriate diagnostic studies, followed by delays in treatment.¹

Some specific diagnoses are particularly troublesome in pediatrics and are highly likely to lead to malpractice suits (Table 1). Failure to diagnose meningitis and appendicitis are two major pitfalls for those treating children. This is not surprising because these conditions can result in serious complications or death if not diagnosed and treated promptly. Missed fractures and failure to find a foreign body in a wound are also common triggers for malpractice suits.¹ The public is aware of great advances in medicine. They expect a good outcome when they seek medical care. Anything less must be someone's fault.

TABLE 1
Common pediatric diagnoses involved in ED malpractice claims

Child abuse

Dehydration

From Selbst SM, Korin JB¹, p 4. Used with permission

There are many reasons that lawsuits originate in the ED (Table 2). One is the setting itself. The ED is often crowded and noisy, and it lacks the warm atmosphere of a pediatrician's private office. Indeed the atmosphere is often one of extreme pressure and stress. Families may be shuffled around to fill out forms and be processed through the system. Privacy is often limited, and overworked clerical staff may be impatient or discourteous at times. Perhaps most important, patients may become frustrated when they endure long waits in a dull seating area before they even get to see the physician. The actual visit with the medical staff may then be brief in comparison to the waiting time.

TABLE 2
Reasons malpractice actions originate in the ED

Impersonal atmosphere

Long hours for staff

Difficult diagnoses

Conditions in the ED may make families angry, and they may direct their anger at the emergency physician if the child has a poor outcome. Anger is a major force in initiating a lawsuit.¹ Sometimes, the encounter with the doctor may seem impersonal if the overwhelmed physician hurries off to see another child. Understandably, it is difficult to establish rapport with a patient and family during a brief emergency encounter, and this puts the emergency physician at a disadvantage. Because the physician does not have an ongoing relationship with the patient, he or she is not as well informed about the child as a private pediatrician who has followed the child for years.

Weekends, holidays, evenings, and nights are the times when most lawsuits originate from the ED. In fact, these shifts account for more than 80% of malpractice actions.⁹ It could be that they are the times when the most unstable children come in for care or that EDs are chronically understaffed at such hours. Not uncommonly, ED staff work long hours, which can adversely affect judgment and record keeping. Despite these obstacles, the staff must treat critically ill children and make rapid decisions that have significant consequences. The chances for error are understandably high.¹

Theories abound as to why people are inclined to sue physicians so readily (Table 3). A parent or guardian generally decides to bring suit when there is an adverse outcome. The inclination to sue may be compounded by poor communication between the health-care provider and the family. In some cases, the patient or family has unrealistic expectations. A few families sue for revenge against a physician with whom they are unhappy, and some bring litigation to "save another patient" from a certain physician.¹⁰ Others sue to obtain resources that they will need to care for a handicapped child, although poor and uninsured patients are not more likely to sue than others.¹¹ Still others bring suit to relieve their own guilt when their child suffers a severe injury or illness.

TABLE 3
Possible reasons why patients and families sue physicians

Poor communication, want more information

Revenge against physician

Desire to relieve guilt

Adapted from Selbst SM, Korin JB¹, p 6. Used with permission

Contrary to popular belief, few families initiate a lawsuit because of greed. It is true, though, that pediatric cases can lead to large awards. Because the patient is young, the potential length of suffering with an injury is long. The prospect of a large award may encourage a parent and attorney to bring suit. Pediatricians, in fact, have the highest indemnity paid per case filed of all doctors—$223,800 per case on average.¹²

Lawsuits are sometimes instigated by a relative (or a subsequent treating physician) who implies that the treatment initially given to the child fell below the "standard of care."¹⁰ One study found that a member of the medical profession advised or influenced families to sue in 23 of 41 cases.¹⁰ Raising the eyebrows, shaking the head, or commenting, "I wish you had brought the child here first" may convey to the parents that initial care was substandard.

All physicians across the country are held to the same standard of care—a national level of competency. The standard of care is defined as that which any reasonable physician in a particular specialty would have given to a similar patient under similar circumstances. Pediatricians and ED physicians must be familiar with current procedures, treatments, and practices. It is assumed that each doctor has the same access to medical information as any other.¹

High-risk conditions in pediatric acute care

Two types of pediatric patients seen in the ED are especially likely to precipitate malpractice lawsuits. They are the febrile child and the child with abdominal pain.

The febrile child. Failure to recognize which febrile children have bacterial illnesses is probably the most common and costly source of all malpractice lawsuits in pediatric medicine. Failure to diagnose meningitis accounts for an estimated 17% of all medical liability dollars expended in this country.¹³ Misdiagnosis of a febrile infant often leaves a severely disabled young child who requires years of support. Juries are generally sympathetic to such children and thus tend to award large sums to the family when the doctor is found negligent.^1,14

Children with fever often pose a diagnostic challenge. Most febrile infants and children have benign, self-limited viral infections; very few have bacterial meningitis or bacteremia. Unfortunately, no perfect guidelines exist to help the pediatrician or emergency physician distinguish between these conditions.¹⁴ The ability to identify a toxic-appearing child comes with experience and makes up, in part, the "art of medicine."¹ Many infections progress rapidly, and obvious warning signs may not be present when the physician first examines a febrile baby.

Meningitis is diagnosed without difficulty when a febrile infant has a stiff neck, is irritable, and cannot be consoled by the caretaker. It must also be considered when a febrile child has a seizure, unless the infant has typical findings of a benign febrile seizure and awakens quickly from the postictal state with a normal neurologic examination. Unfortunately, the diagnosis is not always so obvious. Meningismus, seizures, and bulging fontanel are late findings in young infants with meningitis. Less specific complaints such as vomiting, poor feeding, or a weak cry may be the only warnings of a serious bacterial infection.

Pediatricians and emergency physicians should be very cautious about discharging a febrile infant who is irritable, lethargic, or unable to drink liquids in the ED. Since lethargy may result from dehydration, the baby must be carefully reexamined after rehydration. If the child does not "perk up" after receiving adequate fluids, lumbar puncture should be considered. On the contrary, an interactive child who tolerates oral feedings in the ED is less likely to have meningitis.¹

Once meningitis is diagnosed, treatment should not be delayed needlessly. Some textbooks imply that antibiotics should be started within 30 to 60 minutes after meningitis is found, but most emergency departments fail to meet that time frame. In one study the median time from registration to initiation of antibiotics was three hours.¹⁵ Many experts now believe that withholding antibiotics for a few hours will not affect outcome. The lay public still expects "prompt" treatment, however. The critical time for giving antibiotics before which an individual patient would have full recovery and after which complications are likely is unknown.

Delayed treatment for meningitis is less likely to occur if some reasonable recommendations are followed.¹⁴ First, start antibiotics in the ED rather than the inpatient unit. This may prevent misunderstandings and delays when transferring the patient. Second, do not postpone giving antibiotics in order to obtain diagnostic studies such as a CT scan.¹ If, for example, you suspect meningitis but believe that a CT scan is essential before lumbar puncture, give the antibiotics before the scan. This will probably have no adverse effect on test results. Even if the drugs affect cerebrospinal fluid (CSF) cultures, a cellular response in the CSF and blood cultures drawn before giving antibiotics will still be helpful. Third, check to see that ordered medications are actually given. A miscommunication with the nursing team could have devastating consequences. Finally, consider giving antibiotics immediately when CSF is cloudy, even before definitive results are available.

Diagnosing a child with bacteremia is also difficult.^1,14 By definition, children with occult bacteremia appear nontoxic, which makes the diagnosis tricky. Moreover, infections such as meningococcemia progress quickly, and classic warning signs that might distinguish such infections from a viral illness may be subtle or absent when the child is first examined.¹⁶ About 30% of patients with meningococcemia present without rash and 50% present with a blanching, nonpetechial rash.¹⁶ This makes the diagnosis exceedingly troublesome.

If the child appears toxic, rapid administration of intravenous fluids and antibiotics, are obviously indicated and admission to the hospital is warranted. Even if the child is less ill appearing, treat any patient with fever and a petechial rash with great caution. It may be wise to obtain a CBC and blood culture and observe the child carefully in the ED. IV antibiotics and hospital admission are not required in all cases, but meningococcemia must at least be considered.^1,14

Many patients with meningococcemia are found retrospectively to have a high band count without leukocytosis. Some clinicians thus recommend presumptive antibiotic therapy and hospital admission for a febrile child with petechiae and an elevated peripheral absolute band count.¹⁷ Finally, high fever with unexplained limb pain (possibly caused by microvascular damage) may point to meningococcemia. Although few data exist to validate this association, a febrile child with limb pain severe enough to prevent walking should be managed cautiously.^1,14

When a febrile child looks ill to any member of the medical staff, including the referring physician, discharge from the ED should be reconsidered. It will be difficult to justify discharge when the medical records reveal that a nurse or physician viewed the child as "ill appearing."¹

Managing the febrile child who appears nontoxic is more controversial. Published guidelines propose that a CBC and blood culture be obtained for children between 3 and 36 months of age who have fever higher than 39.0° C and no obvious source of infection.¹⁸ If the CBC reveals leukocytosis (WBC greater than 15,000), some protocols recommend parenteral antibiotics such as ceftriaxone and outpatient follow-up. Not all physicians agree with this approach,^19,20 but because of published guidelines, the physician who fails to manage the patient in this manner may be left to defend his or her position. Unfortunately, the guidelines do not identify all children with bacteremia. Many children with serious bacterial infections do not have an elevated WBC or fever above 39° C.

The child with abdominal pain. Misdiagnosis of acute appendicitis is one of the top five causes of litigation against emergency physicians.²¹ Why are these cases missed? Children with appendicitis can present subtly rather than as the classic "textbook case." Symptoms may evolve over time. Even if laboratory tests are ordered, they are sometimes inconclusive and may not aid in the diagnosis. Pediatricians and emergency physicians must approach each child with abdominal pain cautiously in order to manage the patient correctly and prevent potential litigation. They must distinguish appendicitis from constipation, gastroenteritis, urinary tract infection, pneumonia, streptoccocal pharyngitis, and numerous other common conditions. It is a challenge to determine if the child needs surgical consultation, hospital admission, or further observation at home.

Appendicitis is especially difficult to diagnose in infants, toddlers, and adolescents. It has been misdiagnosed in 7.5% to 12% of children under 15 years of age and up to 57% of children under 6 years of age. Appendicitis is most often misdiagnosed as gastroenteritis or upper respiratory infection. Most misdiagnosed cases result from careless history taking and incomplete physical examination.²¹

Unfortunately, it may not be possible to diagnose appendicitis during one brief emergency visit.²¹ Classic features such as anorexia, vomiting, and obstipation have been reported in up to 80% of patients with appendicitis.²² Only two thirds of patients with appendicitis, however, have right lower quadrant tenderness, and the tenderness may vary depending on the position of the appendix.²² The importance of abdominal tenderness should not be de-emphasized,²¹ though the absence of right lower quadrant pain does not exclude appendicitis.

Radiographs may help with this elusive diagnosis. About 8% to 19% of abdominal radiographs show a fecalith, and many abdominal films show other findings that may make a pediatrician or an emergency physician suspicious (diminished air in the gastrointestinal tract, air-fluid levels, localized ileus, air in the appendix, or indistinct margins of the psoas muscle with scoliosis concave toward the right).²² An abdominal X-ray is often normal with appendicitis, however, and many consider it to be an unnecessary study. Unfortunately, a physician may be "second guessed" for failure to obtain a radiograph.

Rupture of the appendix is a frequent finding at the time of surgery. Perforation occurs in 25% to 30% of cases (up to 50% to 70% in preschoolers).²¹ Perforation may not be avoidable in all patients, and it does not always indicate malpractice. It increases the damages, however, and a physician is more likely to be sued if it occurs.

Following some broad principles may help pediatricians and emergency physicians diagnose appendicitis before perforation. First, maintain a high index of suspicion when evaluating a child with abdominal pain and fever. Second, consider surgical consultation or admit a child to the hospital for further observation even if the child does not have the "classic" presentation for appendicitis. If two of the three modes of assessment (history, physical examination, laboratory studies) concern you, act cautiously. If, for example, a child has a classic history and abnormal laboratory studies, but the abdominal examination is not very impressive, consider surgical consultation or admit the child for observation. This permits frequent reexamination.²² Third, if the patient is discharged from the ED, consider follow-up in 12 to 24 hours, especially if anorexia is present. Fourth, consider obtaining an abdominal ultrasound or computerized tomography if the etiology of the abdominal pain is unclear. Finally, review any radiographs with a radiologist as soon as possible. Table 4 summarizes important cautions to help the physician diagnose appendicitis accurately.

TABLE 4
Tips for diagnosing appendicitis

Consider admission or surgical consultation if the patient exhibits two of these three characteristics:

Classic history
Suspicious physical examination
Abnormal diagnostic test results

Consider abdominal ultrasound/CT scan

From Selbst SM, Korin JB¹, p 67. Used with permission

Document, document, document

Good documentation prevents lawsuits. It is also crucial to the defense of any malpractice case. The patient's medical record is usually the first document reviewed by parents and attorneys. The record often influences a consulting doctor (expert) and may form the basis on which the consultant advises an attorney whether a case has merit and should be pursued. A medical record that demonstrates thorough examination and testing may dissuade the plaintiff's attorney from proceeding further. On the other hand, if test results, or a portion of the examination, are not in the record, the attorney may assume that those things were not done. The medical record should always reflect a concerned, professional attitude toward the child and family. Since no one can predict which cases will end up in litigation, each chart should be carefully prepared.¹

Because children have an extended statute of limitations, many years may pass before a doctor receives notice of a malpractice action. It is unlikely that the physician will recall details of the child's treatment without referring to the medical record. Whether the chart proves to be the doctor's friend or foe depends on how well it was prepared at the time of the ED visit.¹ Millions of dollars undoubtedly have been paid in legal settlements involving cases in which good medical care was rendered but not demonstrated in the medical records.

The "history of present illness" must be described concisely and completely. Note any information that seems related to the chief complaint. This is often difficult in a busy ED. Nevertheless, a brief note that is barely legible conveys a sense of carelessness and haste to a jury.²³ Taking a few extra moments to record details about the child's recent diet, level of activity, or medications given at home may save the physician many hours in court.

A thorough physical examination, including a complete set of vital signs, must be recorded for each child. Vital signs should be timed and repeated for any child who remains in the ED for a substantial amount of time. Abnormal vital signs deserve attention. Most important, the record should reflect the child's general appearance, state of hydration, and level of activity or playfulness in the ED. It is best to be as descriptive as possible. "Alert, interactive, playing with toys on mother's lap," says much more about the general appearance of an infant than an abbreviation like NAD (no acute distress). Rather than recording "irritable baby" it is better to note that the baby "cries when approached but consoles easily with mother."¹

For all children with abdominal pain, the record should reflect that a careful abdominal examination was performed. Studies have shown that documentation of abdominal findings was incomplete in many cases of missed appendicitis in children.^21,24

Future readers of the record should be convinced that the child appeared well at the time of discharge from the ED. This may require a second note. A progress note is especially important if the child required significant time or treatment in the ED after the initial exam. If you need additional paper for such notes, do not hesitate to find it. Inability to fit the note on the paper is not an excuse for incomplete documentation.¹

Diagnostic and therapeutic orders must be clearly written and the time of the order noted. The record should reflect a timely progression of events since orders not carried out promptly may result in grave consequences. Likewise, phone conversations with consultants should be noted and timed. Documenting the use of consultants is important because it demonstrates concern for the child's welfare and the desire to provide proper treatment. Also, the physicians involved will likely share responsibility if there is a poor outcome.¹

Review and document all laboratory test results. Keep in mind that the initial reading of an X-ray by the pediatrician or ED staff is preliminary. Families should be told that X-rays will be reviewed later by a radiologist and they will be contacted if there is any change in the interpretation.²⁵ This strategy may prevent anger or the perception of poor care if the family is called back for additional treatment or referral. Document any procedures performed in a detailed note, including how the child tolerated the procedure. This is important for billing purposes as well as legal reasons.

The medical record should include the doctor's diagnostic impression, which should be consistent with the treatment given. Avoid notes such as "rule out sepsis" unless the child is admitted to the hospital for further diagnostic evaluation and treatment. Otherwise, the condition should be "ruled out" before the patient is discharged from the ED. Document your thought process, especially if the case is complicated. In several settled malpractice cases the physician initially ordered laboratory studies that were later canceled. A change in the management plan may be justified but should be noted in the medical records—for example, "child improved, drinking well, no need for lumbar puncture."¹

Detailed discharge instructions are important. It is unwise to leave too much to the parent's judgment. Nonspecific instructions to "give fluids" or "return as needed" are not helpful. Write out the instructions and go over them orally with the family to be sure the family understands them. Use familiar terms and avoid abbreviations such as tid, prn, or q4h. Always include a few examples of worrisome signs to look for at home. While it is not practical to list every foreseeable complication, the parents must know when to return to their personal pediatrician and what warrants an immediate return to the ED.

The physician should tell the family what he or she is thinking at the time of discharge and why follow-up is so important. It is best to write the diagnosis down for the family or other caretakers at home. Ask the parents or guardians if they have any questions before they leave the ED. Also, it is prudent to investigate potential social problems, such as inability to obtain medications, need for transportation home, inability to be seen by the primary care doctor (because of lack of transportation or scheduling problems, for example), or other factors that could interfere with the child's care.¹

Ask the family to sign the record, indicating they have received and understand the discharge instructions. A copy of the instructions should become part of the medical record. They may prevent litigation or help defend the case.

The medical record should provide meaningful information to another physician if the patient needs further care later on. If a checklist system is used to note normal findings, add pertinent positive and negative findings from the physical exam whenever possible. In evaluating the skin of a febrile child, for example, comments like "no petechiae or purpura" may become quite important. If the entire physical examination is merely checked off as "normal," a jury may not get the impression that a careful exam was performed.

The chart should not include parts of the examination that were not done. Do not, for example, check off the rectal exam as "normal" if you did not perform such an exam. To do so would damage your credibility and make a jury doubt that you really performed other parts of the exam.¹

Physician notes should be consistent with those of nurses and others in the record. The physician must read and acknowledge the nurse's notes. If the doctor disagrees with the nursing assessment (does not believe a baby is lethargic, as described in triage, for example), he or she should note the disagreement in the record in a noncombative manner. It is important that nurses, physicians, consultants, and other members of the medical staff not engage in intramural battles on the record.²⁶ Disagreements should be settled before the patient goes home, and the record should reflect agreement among caretakers whenever possible. Inflammatory remarks and any frustrations encountered in the patient's care should be left out of the record.¹

It is never advisable to alter or "enhance" the medical record after the case is involved in litigation. This will undoubtedly be viewed as a dishonest attempt to hide an omission. It is generally easier to defend an incomplete medical record than one which has been altered.^27,28

Always keep in mind that the medical record is the most important tool to successfully defend against litigation. Table 5 summarizes suggestions for cautious charting.

TABLE 5
Suggestions for cautious charting

Always address the chief complaint

Include pertinent positive and negative findings

Record allergies, immunizations, medications, past medical history

Carefully address general appearance and state of hydration

Include progress and discharge notes for ill patients

Document your thought processes

Maintain a chart that appears neat and professional

Avoid self-serving statements

Establish agreement with notes of other caregivers

Follow-up care

Whenever the treating doctor has concerns about a child's condition or a child seems ill enough to warrant a sepsis work-up in the ED, follow-up within 12 to 24 hours by the primary care physician is warranted. If such follow-up is impossible because of social problems or the absence of a primary doctor, it may be wise to arrange follow-up in the ED or admit the child to the hospital.^1,14

Sometimes, simply telling the patient to make an appointment for future care is not enough. The emergency doctor may be held liable for failing to make an alternative plan if a weekend or holiday delays the recheck or a clinic is unable to give the child an early appointment.¹ In some cases, the ED staff should contact the primary care physician directly to confirm an appointment for the child. This insures accurate transmittal of information and expectations. The emergency physician should make a brief note in the record of any conversations with the primary care physician. Table 6 lists recommendations for safe follow-up of ED patients.

TABLE 6
Recommendations for safe follow-up of ED patients

Tell the parents to return if the child's condition gets worse

Provide written and oral follow-up instructions

Arrange short-term follow-up care when appropriate

Make an appointment for the child, if possible

Call the parents later if the child's condition is worrisome

Notify parents of new or changed laboratory test results and radiology readings

Encourage a return visit if a parent calls to report lack of improvement in a child's condition

Document follow-up instructions and call-backs

From Selbst SM, Korin JB¹, p 148. Used with permission

Putting malpractice claims into perspective

A lawsuit for malpractice does not mean the sued physician is a "bad doctor." It may not even be true that the doctor made an error in judgment or treatment. The pediatrician or emergency physician may have acted appropriately and still an undesirable outcome occurred. (In other cases, a physician may make a bad decision and not face any legal problems because the child fared well). In a malpractice case, the plaintiff's attorney must first show that the physician had a relationship with the patient or a duty to treat the child. Then the attorney must show that the physician breached his duty to treat the patient and did not act according to the standard of care. Finally, the attorney must show that the physician's failure to treat the child appropriately resulted in harm (was a "proximate cause" of harm) to the patient.¹

Most lawsuits against physicians are dropped or settled out of court.⁶ Only about 10% actually reach a jury verdict, and many are found to be without merit or frivolous. Nevertheless, the strain of a lawsuit is still burdensome for all involved. It can result in loss of time and money and significant emotional stress. Some psychiatrists who have treated sued physicians claim that a lawsuit may produce a syndrome (like grieving) with fear, anger, shame, and eventually, resolution.¹

What can be done?

Caring for children in the emergency department involves many risks. Some bad outcomes are inevitable. They can occur because a child presents with unusual or atypical findings. Or the patient's appearance may change as the disease progresses, so that an obvious diagnosis may have been quite obscure only a few hours previously. While it is not possible to be correct all the time, those caring for children should have a high index of suspicion when the child "just doesn't look right" to the mother or another physician involved in his or her care. If the history is worrisome or the physical examination suspicious, it is prudent to observe the child for a period of time. Likewise, persistent vomiting or lethargy may be signs of serious illness and should not be ignored. Finally, prompt follow-up should be arranged for ill patients. The physician who sees the child on the return visit should be particularly concerned if the child has not improved despite the initial recommendations and treatment.¹ When a child visits the ED more than once for the same complaint, the risk of a lawsuit increases.⁶

While there is no way to eliminate all legal actions against those caring for ill children, knowledge of certain problematic diagnoses and risk-management issues may reduce the number of lawsuits and their damages. Medicolegal issues must become part of medical training, especially for those involved in pediatric emergency medicine. In addition, hospitals must develop effective risk-management programs. These can lead to changes within the ED system, which may limit malpractice risks. A well-designed ED, for instance, can reduce waiting time and keep patients more satisfied.¹ They may then leave the ED with fewer negative feelings, even if a bad outcome results. (Patients have sued EDs because of excessive waiting periods claiming the delay in care adversely affected the outcome).⁷ Using efficient forms and well-designed medical records can reduce errors in charting. Also, a system must be established to ensure rapid retrieval of records from previous visits. Finally, proper equipment specially adapted for children is essential. In short, good training, careful practice of medicine, adequate documentation, and improved communication are key factors in keeping the medical staff out of court. Proper medical management to prevent a poor result is the best risk-management tool.

REFERENCES:

1. Selbst SM, Korin JB: Preventing Malpractice Lawsuits in Pediatric Emergency Medicine. Dallas, TX, American College of Emergency Physicians, 1999, pp 1­196

2. Ricci JA, Lambert RL, Steffes DG: Pediatrics and professional liability. Pediatr Emerg Care 1986;2:106

3. Trautlein JJ, Lambert RL, Miller J: Malpractice in the emergency department—Review of 200 cases. Ann Emerg Med 1984;13:709

4. Sites RL: Emergency department closed malpractice claims: Ohio. Perspectives in Health Care Risk Management 1990;Spring:17

5. Berger J: Proper supervision of students, residents minimizes liability. AAP News, April 1, 1999, p 17

6. Reynolds SL, Jaffe D, Glynn W: Professional liability in a pediatric emergency department. Pediatrics 1991;87:134

7. Press S, Russell SA, Cantor JC, et al: Attending physician coverage in a teaching hospital's emergency department: Effect on malpractice. J Emerg Med 1994;12:89

8. Grupp-Phelan J, Reynolds S, Lingl LL: Professional liability of residents in a children's hospital. Arch Pediatr Adolesc Med 1996;150:87

9. Rogers JT: Risk Management in Emergency Medicine. Dallas, TX, American College of Emergency Physicians, 1985, pp 1­36

10. Hickson GB, Clayton EW, Githers PB, et al: Factors that prompted families to file malpractice claims following perinatal injuries. JAMA 1992;267:1359

11. Burstin HR, Johnson WG, Lipsitz SR, et al: Do the poor sue more? A case control study of malpractice claims and socioeconomic status. JAMA 1993;270: 1697

12. Physicians Insurers Association of America: Data Sharing Reports. Rockville, MD, PIAA, 1996 (PIAA, 2275 Research Blvd, Suite 250, Rockville, MD, 20850-3268, 301-947-9000)

13. Henry GL, George JE: Specific high-risk clinical presentations, in Henry GL, Sullivan DJ (eds): Emergency Medicine Risk Management: A Comprehensive Review, ed 2. Dallas, TX, American College of Emergency Physicians, 1997, p 475

14. Selbst SM: The febrile child—missed meningitis and bacteremia. Clinical Pediatric Emergency Medicine 2000;1:164

15. Talan DA, Guterman JJ, Overtruf GD, et al: Analysis of emergency department management of suspected bacterial meningitis. Ann Emerg Med 1989;18:856

16. Wong UK, Hitchcock W, Mason WH: Meningcoccal infections in children: A review of 100 cases. Pediatr Infect Dis J 1989;8:224

17. Baker RC, Sequin JH, Leslie N, et al: Fever and petechiae in children. Pediatrics 1989;84:1051

18. Baraff LJ, Bass JW, Fleisher GR, et al: Practice guidelines for the management of infants and children 0 to 36 months of age with fever without source. Pediatrics 1993;92:1

19. Long SS: Antibiotic therapy in febrile children. Best laid schemes . . . (Editorial). J Pediatr 1994;124:585

20. Wald ER, Dashefsky B: Cautionary note on the use of empiric cefriaxone for suspected bacteremia (Editorial). Am J Dis Child 1991;145:1359

21. Rusnak RA, Borer JM, Fastow JS: Misdiagnosis of acute appendicitis: Common features discovered in cases after litigation. Am J Emerg Med 1994;12:397

22. Schnaufer L, Mahboubi S: Abdominal emergencies, in Fleisher GR, Ludwig S (eds): Textbook of Pediatric Emergency Medicine, ed 4. Philadelphia, Lippincott, Williams & Wilkins, 2000 pp 1513­1538

23. George JE, Quattrone MS: The ED record: Legal implications. Emergency Physicians Legal Bulletin 1984;10:2

24. Bukata WR: Emergency department medical record, in Henry GL, Sullivan DJ (eds): Emergency Medicine Risk Management: A Comprehensive Review, ed 2. Dallas, TX, American College of Emergency Physicians, 1997, pp 295­308

25. Rothrock SG, Skeach G, Rush JJ, et al: Clinical features of misdiagnosed appendicitis in children. Ann Emerg Med 1991;20:45

26. SAEM Task Force on Physician-Patient Communication. Physician-patient communication in the emergency department, part 3: Clinical and educational issues. Acad Emerg Med 1997;4:72

27. Fossarelli P, Baker MD: What you don't record can hurt you: Documentation in the emergency department. Pediatr Emerg Care 1985;1:223

28 Barrah K, Schmid B, Schmid M: Don't doctor your records. Wis Med J 1996;95:385

DR. SELBST is Professor and Vice Chairman of Pediatrics and Director, Pediatric Residency Program, Jefferson Medical College, Philadelphia. He is also a member of the Contemporary Pediatrics Editorial Board.

MR. KORIN is an attorney with the firm of Kenney & Kenney, LLP, Cherry Hill, NJ.

Steven Selbst. Malpractice and emergency care: Doing right by the patient--and yourself.

Contemporary Pediatrics

2000;7:88.