Dr. Robin L. Altman
In a 2019 technical report, the AAP outlines common claims that can arise when treating children during disasters and how certain circumstances can force you to deviate from routine medical practices. In an accompanying policy statement by the AAP committee on medical liability and risk management, recommendations are offered for how to prepare for and prevent such legal risks.
During disasters, liability dangers can increase when circumstances “devolve into an environment of limited choices for both patients and providers,” and you have fewer treatment options available to you, according to the guidance authored by New York pediatrician Dr. Robin L. Altman and her associates.
Common claims that stem from treating patients during disasters are negligence, abandonment, and lack of informed consent. The AAP technical report offers examples about how these accusations can occur, including:
- When during a disaster, you are forced to alter treatment because of scarce medical supplies or equipment, you may later be accused of negligence if the patient’s outcome is negatively affected by the modified treatment.
- When a disaster progresses to overwhelming conditions, and you must practice in an altered health care environment that demands atypical actions, such actions may later be questioned and be accused of providing suboptimal care. Documentation of medical decision making for instance, a primary defense for one’s actions, may be compromised because of an inoperable electronic medical record. Similarly, past medical history may be unavailable, which may impact the appropriateness of care provision.
- In chaotic conditions, you may have to stop treating some patients to focus their time and resources elsewhere, which may lead to an abandonment claim, defined as unilateral termination of a physician-patient relationship – without proper patient notice – when treatment is still required. An abandonment claim also may arise when you have to make decisions in extreme conditions about which patients to transfer or evacuate first and whom to leave behind.
- When providing medical care to children during disasters, a lack of informed consent claim can arise if adequate parental permission is unattainable. This may result from families that are separated or displaced children in need of medical care.
Other claims that can arise from providing care during disasters include HIPAA breaches, licensing violations, discrimination claims, and Emergency Medical Treatment and Labor Act (EMTALA) violations, among others.
To reduce liability risks, you should strive to understand liability risks and limitations during disasters and take steps to mitigate them by crafting a disaster readiness plan, according to the AAP policy statement. The plan should include provider and staff education on improving medical care during disasters and how best to document medical decisions made in disaster-affected health care environments. Proactively identifying obstacles to care during disasters also is key. You can use the AAP division of state government affairs as a resource; it can provide current information on disaster liability in the different states.
You also should understand potential limits to your medical malpractice insurance coverage during disasters and take steps to add coverage for identified gaps, according to the AAP guidelines.
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AAP recommends that you advocate for your health center to have active disaster plans that cover children’s needs and for your hospital to conduct regular drills that test pediatric capabilities. Throughout the guidelines, the AAP calls on the U.S. Department of Health and Human Services to review current state and federal liability laws, and for the agency to recommend new laws that address disaster-response liability protections for doctors. HHS also should assess the liability coverage needs of physicians during crisis times and take action to reduce inconsistencies in state malpractice protections for volunteer physicians and nonvolunteer physicians, according to AAP.
The AAP policy statement is timely because of the number of recent disasters in the United States, said Dr. Altman, lead author of the two papers.
Citing the Federal Emergency Management Agency, Dr. Altman said there were 59 major disaster declarations and 16 emergency declarations in 2017, along with more than 300 mass shooting incidents and more than 110 other man-made disasters such as fires and industrial accidents.
“Disaster conditions can result in pediatric health care providers being faced with the need to address medical conditions outside of their scope of training and experience, without access to the usual fund of patient history and background information, without the usual input or consent from parents or guardians, without the usual assistance of data such as laboratory values or physiologic monitoring, and without knowledge of how long dire conditions will last,” Dr. Altman said in an AAP News statement. “In addition, this can occur within the backdrop of one’s own physical exhaustion, concerns for the safety of one’s own family members, and the risk of loss of valuable and expensive professional property and supplies.”
The AAP guidance can help pediatricians understand the unique professional liability risks that may occur when caring for pediatric patients and families during a disaster, she said.
“It is the hope that this will raise awareness, improve preparedness, and reduce potential deficiencies in professional liability protections for health care providers trying to do their best to care for patients during these infrequent, yet debilitating, events,” Dr. Altman said in the statement.
There was no external funding, and the authors indicated they had no relevant financial disclosures.
SOURCES: Pediatrics. 2019. doi: 10.1542/peds.2018-3892; Pediatrics. 2019. doi: 10.1542/peds.2018-3893.