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Family's presence in ED may lower liability risk
If anything, patients are less likely to sue, say experts
A growing number of EDs are allowing family members to be present during resuscitation, as a result of multiple research articles that consistently report that families want to be present and generally have a positive experience. However, some ED providers refuse to allow this because they fear lawsuits by family members who misinterpret what they see and hear.
What are the liability issues in this new and controversial area? Several authorities who have published and practiced in this area were asked their opinions.
Many people focus too much on the likelihood of lawsuits in these situations, says Gregory P. Moore, MD, JD, an ED physician with Kaiser Permanente in Sacramento, CA. As a general rule, patients are more likely to file suit if they think that secrets are being kept from them, because the lawsuit serves as a conduit to obtain answers to questions about what happened, he explains.
"If they witness good medical care, they will likely feel a sense of appreciation and satisfaction," says Moore. "There is no data that I am aware of, but I would guess that the possibility of a lawsuit is decreased by family presence."
There is no question that family presence is becoming an increasingly accepted practice in EDs nationwide, says Eric T. Boie, MD, vice chair and clinical practice chair for the Department of Emergency Medicine at Mayo Clinic in Rochester, MN. Rather than increasing legal risks, the practice improves the ability of a family member to cope with death and reduces overall liability, he says. "Family members leave with the understanding that everything possible was done and that the team worked hard to save the patient, rather than wondering with no insight whether any more could have been done," says Boie.
Matthew J. Walsh, MD, FACEP, chair of the Department of Emergency Medicine at the University of New Mexico, occasionally has allowed families in the resuscitation room. "I feel that it's rare to have the right staff, sufficient resources, and a family that is present at the right time, but I have personally done it a couple of times," he says.
If the family member is accompanied by a physician or nurse who can explain everything being done, Walsh believes there is no significant risk of liability. "I never worried about legal issues of this type," he says. "Some folks I know feel everything is a risk and they would do nothing beyond the absolute ordinary. Others, like me, are less concerned and don't feel any significant risk."
Most of the time, the family didn't arrive in the ED until the code had been called and the patient was pronounced dead, notes Walsh. "In my current position, the present rooms are too small for the care team and the family, so I couldn't do this at present," he adds.
Moore says that in theory, one legal risk would be a suit for negligent infliction of emotional distress. This is a controversial legal theory not accepted in many jurisdictions, but the underlying concept is that one has a legal duty to use reasonable care to avoid causing emotional distress to another individual. If one fails in this duty and unreasonably causes emotional distress to another person, that person will be liable for monetary damages to the injured individual. In contrast with intentional infliction of emotional distress, there is no need to prove intent to inflict distress; an accidental infliction, if negligent, is sufficient to support a claim.
To avoid this possibility, ED staff should discuss beforehand with the family what they are likely to encounter in the room and then ask them if they want to proceed, similar to the process for informed consent, advises Moore. "It would be very hard later for them then to sue and say, 'You exposed me to something horrible and now I suffer from the experience,'" says Moore. The response would then be, "I warned you of what you would encounter, and you wanted to be present."
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