Pediatric Care in the Emergency Department
December 9, 2013 | Healthcare Risk, Quality, & Safety Guidance
The majority of pediatric ED patients are not treated in pediatric hospital EDs, nor are they cared for by physicians specially trained in pediatric emergency medicine. Children are not miniature adults. Children’s smaller bodies and still-developing anatomy and physiology (e.g., renal systems, lungs) mean that they react differently than adults to medications, have different types of injuries, and are more susceptible to certain diseases and illnesses, such as meningitis and appendicitis. A child’s mental and emotional development, level of literacy, and limited life experience hinder their ability to understand their diagnosis, recommended treatment options, or follow-up medical instructions and mean they may not be able to communicate their medical histories well. They cannot provide legal consent to their own medical care except under certain circumstances. Treatment of children in the ED poses other challenges, such as when they arrive by ambulance without family, when they seek confidential care, or when a parent wants to be present during all phases of treatment.
Consent. Failure to obtain proper consent from a parent or legal guardian, hereafter referred to simply as “parent,” before treating a child can expose the healthcare provider to legal risk and expose the facility to the risk of corporate or vicarious liability. In general, a parent must consent before a minor, as defined by the state law (typically under the age of 18), can be medically treated or even evaluated. Risk managers must be familiar with their state law on consent. For example, some states have a hierarchy of individuals who can give consent by proxy for nonurgent care (e.g., first after a parent might be a step-parent), while others may not allow noncustodial parents to consent (AAP “Consent by Proxy”). If abuse is suspected, depending on state law, child protective services (CPS) or law enforcement may be able to authorize emergency medical care of the child.
Lawsuits alleging lack of consent are usually based on negligence, but some state laws may allow allegations of battery, that is, the intentional physical touching without permission. A lack-of-consent claim is usually based on the idea that a ”reasonable person” would have refused treatment had proper informed consent been sought—which is not the case when emergency care (discussed below) is required. The American Academy of Pediatrics (AAP) notes that while liability for treating children without consent is uncommon, if a minor has been harmed by negligent care, lack of consent may be added to the claim to show a jury that a clinician was careless about the care delivered. (AAP “Consent by Proxy”)
Clinicians should always try to notify parents before providing care to a minor and delay nonurgent care until a parent can be reached for consent. However, there are two instances when parental consent is unnecessary: emergencies and when a minor is legally authorized to consent to treatment. There may also be times when a parent refuses to give consent. These situations are discussed briefly below.
Emergencies. The Emergency Medical Treatment and Labor Act (EMTALA) requires that anyone seeking treatment at a federally funded hospital must be medically evaluated to determine if an emergency medical condition exists, such as a life- or limb-threatening condition. A minor with an emergency medical condition must be treated or stabilized and transported to an appropriate facility for more definitive evaluation—often the case when a minor arrives at the ED by ambulance unaccompanied by a parent and the parent cannot be reached for consent. If no such emergency exists, EMTALA no longer applies and proper consent is needed before any care is provided. Note that the mere existence of a disastrous event does not automatically mean parental consent is not needed, although...