Medico-Legal Considerations =========================== þ "Additional" vs. "Named" insured: - much less protection if not "named" - Webb v. Witt, No. A-3815-03T1 (N.J. Super Ct. App. Div. July 8 2005) þ EMTALA costs - in ~2004, EPs carried an average of >$130,000 bad debt, mandated by EMTALA [Bob Maha, 5/1/06] þ EMTALA and CMS Regulations: - 42CFR489.24(e) (e) Recipient hospital responsibilities. A participating hospital that has specialized capabilities or facilities (including, but not limited to, facilities such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers) may not refuse to accept from a referring hospital within the boundaries of the United States an appropriate transfer of an individual who requires such specialized capabilities or facilities if the receiving hospital has the capacity to treat the individual. - full text of the EMTALA regulations: þ Employee physicians þ Should not wait for parental consent to treat minors in ED - morally and ethically improper - civil liabilty risk - COBRA/EMTALA violation resulting in Letter of Termination [ACEP Patient Transfers: How to comply with the law, 2E. Appendix 3, Summary of EMTALA Violations, #39.] þ 30 minute rule for response of consultants to ED. - NJ has a state regulation that requires consultants to respond within 30 minutes. þ Doctrine of Non-Delegatable Duty þ Refusal of Care by Minors in NM þ Prudent Layperson Statutes - PA Prudent Layperson Statute (Act 112 of 1997) - see also Legislation: þ Restrictive Covenants - How To Scrutinize Restrictive Covenants, By Brian Wyatt, Esq. [copyrighted article from Physician's News Digest (WP), June 1977, scanned for personal use only.] - Restrictive Covenants Ruled Unlawful in Alabama þ Violence in ED - many states now make it a felony to attack someone in the ED. - S.B. 1313 passed both houses in PA and signed into law by governor in PA in 1996. Title 18, PA Consolidated Statutes, Section 2702 þ Peer Review Documents are Protected? þ COBRA/EMTALA þ AMA (Against Medical Advice) þ Good Samaritan Laws: þ Third-Party Safety Concerns: þ Ypsilanti Hospital, Michigan: staff rules say it is unethical to ask about insurance when calling in to the ED as consultant. þ Managed Care: - Shed Smith case, DC: alleged denied care by managed care organization (wife called, denied care, called back, told to call ambulance service (not 911). Went into v. fib en route and died. Estate won. - Lillian Smith case: denied bone marrow transplant - Wickline case: discharged home because ran out of money, had leg amputated as a result. Named managed care organization as well as doctor; but found immune based on ERISSA rules. [source: Greg Henry, M.D.] þ Malpractice: þ Discharge Instructions: - Jolly BT, Scott JL, Feied CF, Sanford SM: Functional illiteracy among emergency department patients: A preliminary study. Ann Emerg Med 1993;22(3):573-578. Computer analysis of instruction sheets given to patients in the emergency department showed that many were written in a manner inappropriate for the educational level of the general ED patient population. þ Deposition advice (Dr. Hart) - Repeat the question in your own head before answering. - "Be dumb as a rock." - OK to say "I don't know" or "I don't understand that question" even to "what's your name?" Make the attorney work. "Well, what part of the question didn't you understand? Did you not understand the word `The`?" "I don't understand the question as a whole." - Don't bring computer, Filofax, records etc. to deposition, as they can be asked for by attorney. - Say "I do not recall it fully." - Make sure you review the transcript. Do NOT waive the standard right to read and correct the transcript. - You can CORRECT answers on the transcript. - Can ask for a break whenever you want. - Don't talk to a soul doing the break; opposing counsel will ask about it. - Never guess; say "I don't know." - Never assume; say "I don't know." - Don't answer hypothetical questions. - Never volunteer explanations. - Don't explain; make the deposing attorney draw it out. - Be ready for summary questions: "Is there anything else you'd like to add?" "Not at the present time." (Save it for the trial.) - Do NOT try to teach. - Never agree with opposing attorney; just repeat things back to him or her. - Look at the lawyer asking the question. - Talk slowly, loud enough for stenogropher. - Never joke or socialize with the opposing attorney. - Don't take the attorney's arguments seriously; they don't. þ Ideal deponent: - Flat, dull, serious, terse, formal, quibbling over meanings and questions. þ Sneaky things attorneys do. - short witness chairs - sweet foods - hot lights - "Wild Bill Hickock" scheme: attorney sets your chair with back to the door. - Deposing attorney sits between your chair and door, blocking exit. - Some attorneys and firms either rent a courtroom, or have a hearing room that looks like a courtroom, for intimidation. þ Problem Questions: - Leading Questions + "Didn't you say that. . ." + "Wouldn't you say that. . ." + "Isn't it true that. . ." - I don't understand the question. - The present case is different from what you said was true. - Every medical case is different. - Front-End Loaded Questions + "Have you stopped beating your wife?" - I can't answer that question. - I can't answer with a yes or no. - My answer would be neither complete nor valid if I answered `yes` or `no.` - Ambiguous or complex questions, especially double negatives - Could you repeat the question? - In answer to the first part, [state it], yes; in answer to the second part [state], no. - You are asking me several questions at once. Would you please separate them? - Authoritative Questions: Standard of Care + NOTHING is an authoritative reference! Don't admit it! Or they'll quiz you on every section of it. - Complex/Longf Questions - could you repeat the question? - I don't understand the question. - "Did you start oxygen?" No. "Did you do an EKG?" No. "Well who did them?" The nurse. "Well why didn't you say that?" You didn't ask. - Deliberate misquotes or false statements. Refer to the chart. Challenge misquotes, even if hypothetical. - Assumption questions: "ASSUME makes an ASS of U and ME." "Let's assume that. . ." Don't let the attorney assume facts (e.g., that the patient actually - Underhanded misread: "I have here the section of Harrison's on meningitis. Are you aware that your treatment was incorrect according to this?" May I see the section of Harrison's now please. "Question withdrawn." May I see the section of Harrison's now please. "Question withdrawn." May I see the section of Harrison's now please. - Speculative or Estimate Questions? "How many cases like this have you treated?" None. All cases are different. "How much time did you spend with the patient?" I estimate that I spent. . "We don't want a guess or estimate, doctor" If you are requesting that I speculate, about 10 minutes. - "What was the patient thinking?" I have no way of knowing what the patient was thinking. -Seeker Questions: "Is that all?" Yes. "Don't you have more to say?" No. DON'T start talking! -Summary questions "Does your testimony so far reflect your complete knowledge of the subject matter covered?" We have covered many topics and jumped from topic to topic and it would be difficult to say if we mised anything. "Are there any documents you'd like to refer to?" None of which I am aware at present. - Poorly defined terms "health" "unreliable" "knife" (vs. scalpel) "sorry" "think" "terrible" "exactly" Can you clarify what you mean by "XXX"? - "You don't understand much." [silence. you only have to answer questions.] - Shifting Context Questions: