The complexity of the interactions of the medical and legal profession has increased in both complexity and number with each passing year. No longer does the focus relate only to fear of being sued, testifying in court, and preparing for a deposition. There is the added dimension of in-hospital legal council in most hospitals, and they play a significant role in any medical legal situation. This chapter cannot cover all aspects, but will attempt to focus on the major concerns a physician must have when treating an injured patient—the 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.
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.
Each year, over 1.6 million people lose their lives throughout the world 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 accurately describing wounds, the surgeon is not only an indirect advocate for the patient, but also provides much needed information that will be used by law enforcement and the justice system.
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 are perception is important to medical personnel interacting with forensic and legal personnel, especially in a court room, deposition, or adversarial situation.
Abandonment: Terminating care of a patient without ensuring 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 for any patient under the care of a hospital, nurse, doctor, or other medical personnel
Competence: The ability of a patient to understand the questions put to them by health care personnel and to understand the implications of the recommendations and decisions made
Negligence: Deviation from an accepted standard of care that would be rendered by a similar practioner under similar circumstances
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. In addition, the availability of funding for hospital and clinician has resulted in local, state, and federal regulations to protect patient, practitioner and hospitals. 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, the 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 their 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 that cannot be eliminated by adequate precautions.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. While implicit to all emergency facilities, this is especially pertinent to designated trauma centers of all levels to provide care to critically injured patients.
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: Who is the patient’s doctor? Who “owns” the patient? Who “owns the medical record and the ancillary records in the hospital and the doctor’s office?
Numerous terms and concepts applied to the many consent issues involved in patient care are as follows:
Expressed consent: A treating health care worker gives his/her permission for recording history, physical exam, and tests, and treating the conditions discovered. The doctor or other health care worker must describe 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, location of the treatment, and date and time of treatment.
Implied consent: Under emergency conditions, when patients cannot speak for themselves because of their clinical condition, and surrogate consent cannot be obtained, it is assumed that if a patient or surrogate could so indicate, they would desire lifesaving evaluation and intervention.
Waived consent: Under some IRB approve research projects wherein a form of treatment does not have scientific universal standards and a new treatment is being evaluated for emergency conditions, and when there is not time to obtain informed consent, the 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 has transpired and treatment rendered, and to then obtain in writing the fact that the patient and/or family understands and give consent, assent, or understanding.
Surrogate consent: Both state and hospital policies define who may give informed consent for defined circumstances for a patient whose clinical condition does not allow him/her to speak for themselves or understand the implications of the information given to them.
Refusal of consent: The adult patient who fully understands the implications of his/her decision may/has the right to refuse to be examined or treated. Under some circumstances, local law or hospital policy requires the local ethics committee or a legal ad litem attorney become involved, especially if the adult refusing treatment has minor children or is mentally incompetent. When evaluation and/or treatment is refused, it is important to adequately document the conditions of the refusal and the various persons 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 enough knowledge to the patient about the procedure, the risks and benefits, and any alternative treatments for the patient to make an “informed” decision.6,7 As outlined by the Joint Commission for Hospital Accreditation, this process has several components, which include the nature of care, medications, procedures, possible risks and benefits, and any limitations on confidentiality of information learned from or about the patien.8 As one enters an emergency center or is admitted to the hospital, consent to be evaluated and treated is usually obtained. Many patients do not completely read the “fine print” above this simple signature block and are often in a hurry to get on with an emergency evaluation. Beyond this simple entrance signature, additional informed consent is required for more detailed treatment (such as an operation), once that more complex treatment is known to be required.
There are two types of consent: expressed and implied. Expressed consent may be either oral or written,6 though written and signed documentation is preferable. Oral (without any written or electronic documentation) consent is difficult to prove/defend in a court of law
In emergency situations, consent is presumed or “implied,”6 that is, when a patient presents with traumatic injuries and 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 life-saving 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 begun, does the team become aware that the patient or his/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. 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 in certain circumstances.9 Individual state regulations also outline other situations in which minors may give consent, such as treatment for sexually transmitted infections, abortions, contraception, and prenatal care.9
In the event a patient lacks the capacity to consent, health care decisions may be made by the patient’s legal representative, a parent, family member, guardian, surrogate, or medical power of attorney.6 Hospital policies define the priority of surrogate consent, and these policies usually reflect local or state laws. Competency in medicine is different from the legal connotation. Competency or capacity refers to the patient’s ability to understand what is best and right for him or her, and the decision is autonomous.8 Capacity is generally not an issue unless the patient suffers from a cognitive deficit, such as Alzheimer’s disease. Substance abuse or withdrawal from a substance that has caused altered mental status will affect capacity as well.9 All attempts should be made to obtain consent. Hospital administrators may assist when there is an issue with capacity and no patient representative present. Under such circumstances, an ad litem (court appointed) representative of the patient might be considered. Local, state, and federal regulations exist defining the process and payment for ad litem representation.
A patient may also refuse to give consent. Competent patients may refuse care, which includes procedures, admission, or a laboratory test.8 While troubling and frustrating for the physician, the right to refuse treatment must be recognized and respected. Refusal to consent is usually reserved for a patient who has reached majority. In the case of a parent issuing a “refusal to consent or treat” a minor child, family court judges often get involved with hospital administrations and physicians to determine what is permissible. The physician must consider competency a subjective assessment, and judgment of such falls to medical professionals.10 The physician must ensure all information is provided and any questions answered so the patient has the data to make an informed decision. This may take time, but it is time well spent if the patient’s immediate clinical condition allows such a delay.
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