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About to Date an ED Patient? Don't Ignore These Legal Risks
It's ammunition for plaintiff's counsel
Developing personal relationships with ED patients involves ethical, as well as possible legal implications, says William Sullivan, DO, JD, FACEP, director of emergency services at St. Margaret's Hospital in Spring Valley, IL, and a Frankfort, IL-based practicing attorney. "Some ethicists have questioned whether it is wise to merge one's social and professional lives," he adds.
Frank Peacock, MD, vice chief of emergency medicine at The Cleveland (OH) Clinic Foundation, says that if an emergency physician (EP) dates an individual after meeting him or her in the ED, "that's a real problem. Legally, you are allowed to date people, but it is high-risk behavior to try to contact a patient after an ED visit."
If you aren't caring for the patient and went into his or her chart to get a phone number, Peacock says, "there could be all sorts of legal action involving that scenario."
"The medical records are considered private material, and if you have no business in there, it's easily a [Health Insurance Portability and Accountability Act] HIPAA violation," says Peacock. "The patient wouldn't even have to be the one who brought the suit. If the hospital becomes aware that you have done that, it's a $50,000 fine for each violation."
Arthur R. Derse, MD, JD, FACEP, professor of bioethics and emergency medicine at the Medical College of Wisconsin in Milwaukee, says the best practice for EPs is to consider patients and former patients to be off limits for personal relationships.
Derse notes that a number of medical examining and licensing boards specifically state that having an inappropriate relationship with a patient violates their codes. "In some of these, a patient is defined as up until two years after medical care was provided," he says. "There is a large potential danger area."
While these codes are generally meant to apply to ongoing doctor-patient relationships, as in psychiatry, says Derse, "a savvy lawyer could use this in a malpractice lawsuit, as evidence that an emergency physician was acting inappropriately."
Evidence Against You
If you date an ED patient, says John Burton, MD, chair of the Department of Emergency Medicine at Carilion Clinic in Roanoke, VA, "the first place where you'd get into trouble is not necessarily legally, but with the state board of medicine."
Most complaints against physicians alleging an improper relationship with a patient ultimately end up at either the state board of medicine or the hospital ethics board, which often reports to the hospital executive board, notes Burton.
If a patient complains to the medical examining board, says Derse, this complaint might be used as evidence against you in a subsequent malpractice lawsuit.
If your behavior is sanctioned, warns Burton, this will be on your record and most likely would get reported out to the National Practitioner Data Bank. "These things are increasingly being investigated aggressively and reported out to boards, which have very little tolerance for these kind of activities," Burton says. "And if the board investigates it, you'd better get a lawyer because your whole career is on the line."
Jennifer Lawter, RN, JD, vice president of risk management at EPMG in Ann Arbor, MI, notes that most medical and nursing societies have guidelines and/or rules that they enforce when it comes to moral and ethical obligations of their members. "Physicians and nurses need to be concerned about these expectations, as well as the various state-licensing organizations, so that they do not run afoul of the requirements," she says.
Most insurance coverage for medical-malpractice litigation doesn't typically cover licensing investigations, adds Lawter, which can be costly. "You may find yourself with licensing-violation allegations, or perhaps be 'kicked out' of professional societies," she says.
"While this may not be as scary as a medical-malpractice lawsuit at first glance, it can lead to more problems than you may be prepared for," says Lawter. "These issues will nearly always show up in any future litigation."
Crossing the Line
Ann Robinson, MSN, RN, CEN, LNC, principle of Robinson Consulting, a Cambridge, MD-based legal-nurse consulting company, says that when you become involved with an ED patient, "you have crossed the line of an agreement. It's muddy water, at the very least."
If a patient sued the ED, and a jury learned that a nurse or physician had dated that patient, she says, "it would be very difficult for the hospital to defend itself. Its credibility would be undermined."
The social relationship with the patient, says Robinson, "would be ammunition for the plaintiff's counsel to prove the hospital was not looking out for the best interest of the patient."
Matthew Rice, MD, JD, FACEP, former senior vice president and chief medical officer at Northwest Emergency Physicians of TEAM Health in Federal Way, WA, says, "There are certain barriers you have to place between you and the patient, as a professional. When those barriers start to break down, huge problems occur."
Rice notes that Washington state has taken a serious stand on this issue, with its Medical Quality Assurance Commission recently establishing written boundaries on appropriate behavior. "Actions will be taken against you as a professional if you cross over the boundaries we believe to be there," says Rice. "This is critical for those people who think they can be a physician and casually associate with their patients."
If an ED patient decides, at any point in time, to bring an action for medical malpractice, says Lawter, the nurse or physician named in the lawsuit would be at a significant disadvantage if a personal relationship existed.
"Much of this depends on when the relationship develops. Ideally, it should be much later, after the ED treatment has taken place," she adds.