Page 163 - Hall et al (2015) Principles of Critical Care-McGraw-Hill

CHAPTER 19: Legal Issues in Critical Care 129

human organism almost indefinitely. Questions relating to the dis- Included should be a specification of ultimate responsibility for a
continuation of medical intervention and the harvesting of organs for patient’s admission or discharge.
transplantation have demanded new approaches to the legal definition As a general principle, when there is a question concerning allocation
of death. of responsibility for decisions or actions that is not answered by exam-
In response to these questions, almost all states have adopted, by ining existing institutional policy, development of a new institutional
statute or court decision, a version of “brain death,” although some policy may be advisable. Courts ordinarily grant hospitals broad leeway
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controversy endures about the scientific and ethical propriety of this in the development and enforcement of the sort of institutional proto-
concept. The “brain death” standard provides, as either an alternative cols discussed in this chapter, as long as their policies and procedures
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to or a replacement for the traditional heart-lungs approach, that a per- appear to ensure that patient care is rendered within currently accept-
son is legally dead when there is irreversible cessation of all (including able medical standards. As noted earlier, Joint Commission accredita-
stem) brain function. Death declared according to this legal standard tion standards also set permissible parameters for internal institutional
should be confirmed clinically according to the Harvard criteria, as protocols.
those criteria have been periodically updated. Once a patient has For physicians who function as clinical teachers in training programs,
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been declared dead, there are no more treatment decisions to be made residents and medical students may expose the attending physician to
(although autopsy and organ donation issues may remain). There is vicarious liability for negligent acts or omissions done in the course
neither a legal duty nor a right to continue medical intervention on a of the educational activity. The exercise of due care in the monitoring,
patient who has become a corpse. supervision, task assignment, and evaluation of residents and students
who are supposed to be under the physician’s supervision cannot be
LEGAL RESPONSIBILITY AND VICARIOUS LIABILITY overlooked.

Critical care medicine is an interdisciplinary team enterprise, and the DOCUMENTATION
manner in which members of the team relate to each other and to the
patient and family carries legal consequences. Under the old “captain Creating and maintaining accurate records of patient care is an integral
of the ship” doctrine, a physician who directed a critical care unit part of the duty that a health care provider owes to a patient. Good
automatically was held legally responsible for any negligently caused documentation is imperative to providing competent patient care and,
patient injury occurring in the unit, regardless of that physician’s per- because avoiding unexpected bad outcomes is the best legal prophy-
sonal ignorance of or lack of involvement concerning the particular laxis, it is therefore wise risk management practice. Furthermore, in the
error or omission. The captain of the ship doctrine has been gradually event of accusations of substandard care, the physician’s best (and often
abandoned by the courts in recognition of the increasing complexity of only) defense will lie in the quality of documentation created to explain
health care delivery. and justify decisions made and actions taken. In addition, institutional
However, a physician still may be held responsible, under a vicarious accreditation and third-party payment turn heavily on information
liability rationale, for patient injuries proximately (directly) caused by drawn from medical records.
negligent errors and omissions committed by nurses or other provid- The quality of medical records is especially important in critical care,
ers over whom the physician has supervisory power. The key inquiry where patient conditions are subject to rapid change, many different
in potential vicarious liability situations is not whether the physician professionals may be involved in treating the patient, cost considerations
actually was exercising supervisory power at the time of the supervisee’s are always present, and decisions (such as limiting the application of
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negligence, but instead whether the physician had the authority and life-prolonging technology) may be controversial. The watchwords of
opportunity to supervise properly if he or she had chosen to exercise documentation are the same from the legal and medical perspectives:
that power. completeness, legibility, accuracy or truthfulness, timeliness, corrections
Thus, the vicarious liability doctrine has significant legal ramifica- made in a clear and unambiguous fashion, and objectivity.
tions for the interdisciplinary team’s conduct in rendering critical care. The ongoing evolution toward adoption of electronic health record
The physician and other team members must understand their legal (EHR) systems in health care institutions has a strong potential for
relationships to each other and the implications of those relationships improving the quality and efficiency of patient care documentation. The
with regard to assignment of tasks, oversight, reporting, communica- advent of EHR will, however, implicate a number of legal issues that
tion, and problem resolution. The physician must take seriously the must be addressed. 45,46
obligations that go with being the legal team leader, without acting One significant issue that must be addressed whether recordkeeping
autocratically and thereby negating the benefits of broad interdisciplin- takes place electronically or on paper is that of patient confidentiality.
ary contributions to patient care. In light of common law privacy principles, applicable state statutes, and
Institutional protocols should delineate operational principles of the federal regulations implementing the Health Insurance Portability
team and the individual physician’s supervisory responsibilities. When and Accountability Act (HIPAA), the physician must guard against the
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there are multiple consultants on a particular case (as is the norm), unauthorized disclosure of personal information about a patient. The
medical staff bylaws must spell out the continuing coordination and person who has the authority to give or refuse consent for medical treat-
monitoring obligations of an identified attending or primary care phy- ment (ordinarily the patient or surrogate) usually controls the release
sician; failure to do so unambiguously increases the liability exposure of identifiable medical information to third parties, unless there is a
of all involved clinicians and the hospital in the event of a bad clinical court order or government regulation demanding something different.
outcome. Consultants who are not hospital employees must be creden- All questions about the release of medical information to third parties
tialed to practice within the hospital according to criteria contained in in specific cases should be directed to the institution’s medical records
the bylaws. Hospital policies and procedures must designate their ICUs department or legal counsel.
as either “closed” (in which case the patient is transferred to an intensiv- The counterpart to the right of the patient or surrogate to control
ist who functions as the primary care physician) or “open” (in which the release of information to others is the patient’s own right of access
case the original primary care physician retains ultimate authority and to the information contained in the medical record. This right of
responsibility, but is permitted or even required to consult with a critical access is guaranteed, at least for in-hospital care, by the federal Privacy
care physician on the hospital’s staff). Act for federal facilities, and for most private and other public facili-
Similarly, methods of triaging patients into and out of the ICU should ties by the HIPAA regulations, state patients’ rights statutes, and Joint
be delineated within the hospital’s written policies and procedures. Commission standards.

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