Legal Issues in

Emergency Medicine
Atty. Gerard L. Chan, LL.M.
Professorial Lecturer, University of the Philippines, College of
Law
Professorial Lecturer, Ateneo de Manila Univesity John
Gokongwei
School of Management
Director for Legal Affairs, Department of Transportation and
Communications (DOTC)

Legal Issues in Emergency

Medicine

Informed Consent

Privacy, Confidentiality and Reporting

(HIPAA)

Emergency Medical Transfer in Active

Labor Act (EMTALA)

INFORMED CONSENT

A legal condition whereby a person can be said

to have given consent to submit to treatment.
Based upon a clear appreciation and
understanding of the facts, implications and
future consequences of an action
After having been properly educated by the
physician about the risks and benefits of the
proposed treatment, and about the viable
treatment options, including the option of not
undergoing.

INFORMED CONSENT

It is the duty of the physician to inform

the patient or his relatives of the nature
of the illness, progress of his condition,
common
accepted
treatment,
alternatives, risks and probable costs and
obtain a voluntary informed consent for
any procedure he intends to perform.
(Article II, par. 3, Code of Ethics of the
Medical Profession, Philippine Medical
Association)

Dual Purpose of Consent

To protect the bodily integrity of the

patient
(autonomous
person)
by
attaching civil and/or criminal liability to
unwanted contact (i.e. contact in the
absence of consent)

To provide a defense to a physician who

has
physically
examined
an
autonomous patient who had consented
to the contact.

Essential Elements of Consent

Legal capacity of the parties

Manifestation
parties

Conformity
must
be
intelligent,
spontaneous and free from vices of
consent

Conformity
simulated

of

must

conformity

be

real

of

and

the

not

Patient Capacity

Decisional Capacity
Law)

(under Illinois

The ability to understand and appreciate

the nature and consequences of a
decision regarding medical treatment or
foregoing life-sustaining treatment and
the ability to communicate an informed
decision in the matter as determined by
the attending physician

Patients capacity determined by physician

Taking a history from an alert patient with no

barriers to communication

Disagreement with the physicians plan does

not indicate lack of capacity if the decision
was made in a rational way based on values
and beliefs

If a patient has capacity to make a given

decision, his/her wishes should be respected

Capacity not a static all-or-none ability

Patients decision-making capacity may

change over time in the ED and should
be reassessed

Factors to Consider in Determining

Capacity

Presence of conditions impairing mental

function

Presence of
(awareness,
attention)

Patients
understanding
of
treatment-related information

Appreciation of the significance of the

information to the patients situation

basic mental
orientation,

functioning
memory
specific

Patients ability to reason about

treatment alternatives in light of values
and goals

Complexity of the decision-making task

Risks of the patients decision

Common
Capacity

Errors

in

Assessment

of

Assuming that lack of capacity for one

type of decision means lack of capacity for
all decisions

Assuming that legal competence is the

same as medical decision-making capacity

Presuming that capacity is constant over

time

Presuming that psychiatric

preclude adequate capacity

disorders

Failing to ensure that patient has

relevant and consistent information
before making a decision

Assuming that capacity should only be

considered for refusal of treatment

Failing to recognize that decisionmaking capacity varies with the

risks/benefits inherent in the decision

Persons
Consent

Who

May

Give

Informed

Patient
Spouse
Eldest Child
Parents of the patient
Grandparents of the patient
Brother or sister of the patient
Nearest kin available
The State (highest official in the hospital)

Quantum of Information
Informed Consent

for

Valid

The quantum of information needed will

be on a case to case basis. A physician
is not negligent if he acted in
accordance with a practice accepted as
proper by a reasonable body of medical
people skilled in that particular art

Chatterton v. Gerson (1981)

.once the patient is informed in broad terms

of the nature of the procedure which is
intended, and gives her consent, that consent
is real..Of course, if information is withheld in
bad faith, the consent will be vitiated by fraud.

Quantum of Information
Informed Consent

for

Valid

Physicians generally not held responsible

To disclose risks that are so rare as to be

immaterial; or
To disclose risks that are considered common
knowledge
Caveat: In the Emergency Department:

Better to give more, not less, information to the

patient
Best option to disclose all material risks,
including those that are common knowledge

Exceptions to the Right to Informed

Consent

Emergencies

Render needed emergency treatment in

situations where consent cannot be obtained
or cannot be ascertained in a timely fashion
due to the nature of the illness
Basis: Implied Consent

A reasonable person would, if able, give

consent to such emergency or life-saving
treatment

Public Health Imperatives

When public good overrides individual

patient autonomy

High-risk communicable diseases

Patients with mental illness who pose a

danger to themselves and the public

Documentation of Consent

In obtaining informed consent, process is

the most important

Generally: Oral consent is as good a written

consent

But: Documentation signed by the patient

can aid the provider should the consent
process be challenged later on

Therefore: Document. Document. Document.

Note: General Consent Forms

Only provide
treatment

Covers only standard examinations and

basic procedures

Does not include consent for detailed,

risky or invasive procedures

general

consent

for

Consent

Informed Refusal

Patients

Refuse part of a treatment plan

Refuse to be evaluated entirely
Wish to leave before the completion of
the planned evaluation

o
o

Steps to be undertaken

Ensure
that
there
are
no
miscommunications or misunderstandings
at the root of the refusal

Correct issues that may prevent an

open, non-contentious discussion
such as

A meal, blanket, call to a personal

physician, additional pain medication

Develop an
original plan

alternative

to

the

ED Departure Against Medical Advice

and ED Elopement

Reasonable treatment should be provided

as appropriate and concordant with the
patients wishes even though patient
leaves against medical advice

Document situations when patient leaves

against advice which must contain:

Documentation
of
capacity
(with
examples and examination clearly noted)

o
o
o
o

Discussion of the risks reviewed with the patient

Offers of alternative treatments if available
Efforts to involve family or clergy in the decision
Explanation of any potentially problematic
entries in the chart
Patients signature, and in case of refusal to
sign, documentation of that fact
Documentation of treatment and follow-up
provided
Statement that an offer of care at any time was
provided to the patient

PRIVACY, CONFIDENTIALITY AND

REPORTING (HIPAA)

Health
Insurance
Portability
Accountability Act of 1996 (HIPAA)

US law for protection of health care

privacy and confidentiality of individuals
Establishes standards for the security,
exchange and integrity of electronic
health information
Set rules for fair information practices for
health care

and

Protected Health Information (PHI) is

any information, including genetic

information, whether oral or recorded
in any form or medium, which

Is created or received by a
care provider, health plan,
health authority, employer
insurer, school or university, or
care clearinghouse; and

health
public
, life
health

Relates to the past, present or

future physical or mental health
or condition of an individual; the
provision of health care to an
individual; or the past, present
or future payment for the
provision of health care to an
individual

Disclosure
Information

of

Protected

Health

Only the minimum amount of information

required to accomplish the purpose will
be released
PHI may be used without authorization in
the following cases:

Treatment

Management and coordination of health

care and related services including
consultations and referrals

Payment

Use PHI to obtain payment or

reimbursed for care provided to
individual

Operations

Quality
improvement,
employee
evaluation and credentialing, auditing
programs

12 National Priorities

be
an

12 National Priorities for which PHI may

be Disclosed without Authorization

When required by law

Public health reporting (e.g. vital statistics,
disease, adverse event reporting)
Reporting abuse, neglect or domestic
violence
Health
oversight
activities
(e.g.
inspections, audits)
Judicial and administrative proceedings

Law enforcement purposes (e.g. criminal investigations)

Disclosures about deceased persons to medical
examiners, coroners and funeral directors
Organ, eye and tissue donation purposes
Some types of research (e.g., where an institutional
review board has waived authorization requirement)
Avert a serious threat to the health or safety of the public
Specialized government functions (e.g. military missions
or correctional activities)
Workers Compensation claims

HIPAA Dos and Donts

HIPAA Dos

Talk freely with patients primary

physician
Discuss PHI with consultants and other
members of the patients health care
team
Use PHI for reimbursement and
operational issues

Release records to the patient or an

authorized representative
Discuss PHI with family or friends if
the patient is in an emergency
situation, unable to consent and the
information is beneficial to the
patient

o
o

HIPAA Donts
Discuss patients or PHI in public or unsecured
areas
Leave computers with access to PHI logged on
and unattended
Discuss PHI in front of others without permission
Speak loudly when discussing PHI, particularly in
public areas
Look at records for which you have no legitimate
purpose as a provider

Physician
Patient
Privileged
Communication Under Philippine Laws

Statutory Privileged Communication

A person authorized to practice

medicine, surgery or obstetrics
cannot in a civil case, without the
consent of the patient be examined
as to any advice or treatment given
by him or any information which he
may have acquired in attending such
patient in a professional capacity,

which information was necessary to

enable him to act in that capacity,
and which would blacken the
reputation of the patient (Section
24, par. c. Rule 130, Rules of Court)

Ethical
or
Information

Professional

Confidential

The physician is obliged to respect the

confidentiality of all information he
acquires
on
the
basis
of
his
professional capacity, and not to divulge
this information to third parties, unless
there is a law, a court order, or a
waiver from the patient or when the
common good so requires.

Such obligation extends even after

the death of the patient. (Article
II, par. 4, Code of Ethics of the
Medical
Profession,
Philippine
Medical Association)
Note:
Duty of Confidentiality
Extends to the Hospitals

Cases Where Privilege Does Not Apply

When disclosure is necessary to serve the best

interest of justice
PD 169 requires physicians to report to the
nearest police station any victim of serious and
less serious physical injuries that comes to his
knowledge
PD 603 requires physicians to report in writing
within 48 hours to the provincial or city fiscal
or to the local council for protection of children
any case of maltreatment or abused child

When disclosure will serve public health

and safety

Physician obliged to report the existence

of contagious or communicable disease
so that necessary public health
measures can be adapted

When the patient waives the

confidential nature of such information

EMERGENCY MEDICAL TREATMENT

AND ACTIVE LABOR ACT 1986
(EMTALA)

Patient Dumping

Refusal to treat because of patients

inability to pay or insufficient insurance,
OR

Transferring or discharging emergency

patients due to high diagnosis and
treatment costs

EMTALA applies when

An individual comes to the emergency

department and
A request is made for examination or
treatment of a medical condition

Three Obligations Imposed by EMTALA

on Hospitals Operating EDs

Provide medical screening examination

to determine whether an emergency
medical condition (EMC) exists

Stabilize the patient

hospitals capability

Accept transfers from hospitals who

lack
capacity
to
treat
unstable
emergency medical conditions

within

the

Provide Screening Examination

Determine whether EMC Exists

to

Participating hospital may not delay

examination and treatment to inquire
about methods of payment, insurance
coverage, citizenship or legal status

But: Hospitals may follow reasonable

registration procedures, including inquiring
about insurance, provided this does not
delay screening examination or discourage
patients from remaining for evaluation

Therefore: Request for co-payments or

down-payments deferred until after
screening
examinations
to
avoid
appearance that the request for
payment could have deterred a patient
from continuing emergency care

Emergency Department

A specially equipped and staffed area of

the hospital used a significant portion of
the time for initial evaluation and
treatment of outpatients for emergency
medical conditions

Hospital-based
outpatient
clinics
not
equipped to handle medical emergencies
are not obligated under EMTALA and can
simply refer patients to a nearby ED for
care

Patient on hospital property who

makes a request for treatment for an
EMC, triggers the hospitals EMTALA
duty

Presentation by Ambulance

Once an ambulance arrives on hospital

grounds and a request is made for screening
examination, EMTALA applies
But: if ambulance arrives at a hospital solely
for the purpose of transferring the patient to
another institution, EMTALA not triggered since
no request for evaluation or treatment is made
However: if ambulance or patient requests
evaluation or treatment from the facility, then
EMTALA is triggered

Emergency Medical Condition (EMC)

A condition manifesting itself by acute

symptoms
of
sufficient
severity
(including severe pain) such that the
absence of immediate medical attention
could reasonably be expected to result in
placing the individuals health [or health
of an unborn child] in serious jeopardy,
serious impairment to bodily functions, or
serious dysfunction of bodily organs

Includes psychiatric and substance

abuse or withdrawal conditions
A pregnant woman with an EMC
must be treated until delivery is
complete, unless a transfer is
appropriate

EMC is a medical decision

Law gives little guidance as to what

constitutes an EMC
If no EMC exists, EMTALA does not
apply to the patient
Physician must be aware that an EMC
exists before he/she is liable under
EMTALA

Medical Screening Examination

Process
required
to
reach, with
reasonable clinical confidence, the point
at which it can be determined whether
an EMC exists

May involve a simple process (i.e.

history or physical examination); or
Complex process (i.e. ancillary studies,
consultants and procedures)

Screening must be the same for

every patient presenting with similar
symptoms or complaints to be
EMTALA compliant

Nurse triage does not meet the

hospital obligation to provide a
medical screening examination

Stabilize Patient
Capability

within

Hospitals

Stabilize

To provide such medical treatment of the

condition as may be necessary to assure,
within reasonable medical probability, that
no material deterioration of the condition is
likely to result from or occur during the
transfer of an individual from a facility, or,
with respect to [a pregnant woman having
contractions], to deliver (including the
placenta)

Does not require that the underlying medical

condition be resolved

Patient with difficulty breathing and a history

of asthma may be stable once provided with
medication and oxygen despite the fact that
the underlying condition of asthma is still
present
Hospitals may not discharge a patient prior
to stabilization on the basis of patients
cancelled insurance or discontinued payment
during the course of his stay.

Decision regarding whether the patient

is stable rests with the physician actually
treating the patient
Burden of proof for stability rests with
the transferring hospital
After stabilization, EMTALA no longer
applies, patients may be discharged or
admitted for further care
Once admitted, the hospitals EMTALA
duty is considered complete

Accept Transfers from Hospitals

Patient considered stable for transfer if

treating physician determines that no
material deterioration will occur during
the transfer between facilities

EMTALA does not apply to transfer of

stable patients

Hospital may
patient unless

not

transfer

unstable

A physician certifies that the medical benefits

expected from the transfer outweigh the risks;
or
A patient makes a transfer request in writing
after being informed of the hospitals obligations
under EMTALA and the risks of transfer
Hospital must report any time it has reason to
believe it may have received an individual who
has been transferred in an unstable medical
condition from another hospital in violation of
EMTALA

Reverse Dumping

Failure of centers with specialized

capabilities to appropriately accept
patients transferred to them

Failure to report an EMTALA violation

is itself a violation

But an EMTALA violation does not

imply medical malpractice

Requirements for an
Transfer under EMTALA

Appropriate

Transferring hospital stabilized the patient

to the best of its ability
Receiving hospital has the capability and
capacity to care for the patient
Receiving hospital agrees to accept the
individual and provide appropriate medical
treatment
Transferring hospital sends all pertinent
medical records and written consent to
transfer

If transfer was due to failure of an on-call

physician to appear, name and address of
said physician must be provided to
receiving hospital

Transfer performed through qualified

personnel
and
transportation
as
determined by the transferring physician.
Receiving hospital may not condition
acceptance on the use of a specific
transport service or method

EMTALA Dos and Donts

EMTALA Dos

Treat all patients in the same way

Provide a medical screening examination
appropriate to the patients complaints
Appropriately transfer patients you
cannot stabilize
Accept transfers who require specialized
services your hospital offers

Involve on-call specialists when

needed to diagnose or stabilize an
EMC
Educate ED, hospital staff and
faculty on EMTALA rules
See patients quickly and efficiently

o
o

EMTALA Donts
Substitute triage for a medical screening
examination
Discourage or coerce patients away from
receiving their screening exams and stabilization
Allow to be convinced that a specialist does not
need to come to the ED
Fail to stabilize within your capabilities
Delay medical screening examination for preauthorization or registration

Emergency Medical Treatment Under

Philippine Law

Republic Act No. 8344, An Act

Penalizing Refusal of Hospitals and
Medical
Clinics
to
Administer
Appropriate
Initial
Medical
Treatment
and
Support
in
Emergency or Serious Cases (R.A.
No. 8344)

Emergency is a condition or state of

a patient wherein based on the
objective findings of a prudent
medical officer on duty for the
day there is immediate danger and
where delay in initial support and
treatment may cause loss of life
or cause permanent disability to
the patient (Section 2 (a), R.A. 8344)

Serious Case is a condition of a

patient characterized by gravity or
danger wherein based on the
objective findings of a prudent
medical officer on duty for the day
when left unattended to, may
cause loss of life or cause
permanent disability to the
patient (Section 2 (b), R.A. 8344)

Stabilize
is
the
provision
of
necessary care until such time that
the patient may be discharged or
transferred to another hospital
or
clinic
with
a
reasonable
probability
that
no
physical
deterioration would result from
or occur during such discharge or
transfer (Section 2 (h), R.A. 8344)

Emergency
Treatment
and
Support refers to any medical or
surgical
measure
within
the
capability of the hospital or medical
clinic that is administered by
qualified health care professionals to
prevent the death or permanent
disability of a patient (Section 2 (e),
R. A. 8344)

In emergency or serious cases, it shall

be unlawful for any proprietor, president,
director, manager or any other officer,
and/or medical practitioner or employee
of a hospital or medical clinic to request,
solicit, demand or accept any deposit
or any other form of advance
payment as a prerequisite for
confinement or medical treatment of
a patient in such hospital or medical clinic

or to refuse to administer medical

treatment and support as dictated
by good practice of medicine to
prevent death or permanent disability
(Section 1, R.A. 8344)

However, by reason of inadequacy

of the medical capabilities of the
hospital or medical clinic, the attending
physician may transfer the patient
to a facility where the appropriate
care can be given, after the patient
or his next of kin consents to said
transfer and after the receiving
hospital or medical clinic agrees to
the transfer (Section 1, R.A. 8344)

When the patient is unconscious, incapable

of giving consent and/or unaccompanied,
the physician can transfer the patient
even without his consent, provided that
such transfer shall be done only after
necessary emergency treatment and
support have been administered to
stabilize the patient and after it has been
established that such transfer entails less
risks than the patient's continued
confinement (Section 1, R.A. 8344)

No hospital or clinic, after being

informed
of
the
medical
indications for such transfer,
shall refuse to receive the
patient nor demand from the
patient or his next of kin any
deposit or advance payment
(Section 1, R.A. 8344)

After the hospital or medical clinic

mentioned
above
shall
have
administered medical treatment and
support, it may cause the transfer of
the patient to an appropriate hospital
consistent with the needs of the
patient,
preferably
to
a
government hospital, specially in
the case of poor or indigent patients.
(Section 1, R.A. 8344)

Any official, medical practitioner or employee

of the hospital or medical clinic who violates
the provisions of this Act shall, upon conviction
by
final
judgment,
be
punished
by
imprisonment of not less than six (6)
months and one (1) day but not more
than two (2) years and four (4) months, or
a fine of not less than Twenty thousand
pesos (P20,000.00), but not more than
One
hundred
thousand
pesos
(P100,000.00) or both, at the discretion of
the court.

If such violation was committed

pursuant to an established policy of
the
hospital
or
clinic
or
upon
instruction of its management, the
director or officer of such hospital or clinic
responsible for the formulation and
implementation of such policy shall,
upon conviction by final judgment,
suffer imprisonment of four (4) to six
(6) years, or a fine of not less than One
hundred thousand pesos

(P100,000.00), but not more

than Five hundred thousand
pesos (P500,000.00) or both, at
the discretion of the court.

Republic Act No. 9439, An Act

Prohibiting
the
Detention
of
Patients in Hospitals and Medical
Clinics on Grounds of Non-Payment
of
Hospital
Bills
or
Medical
Expenses also known as Hospital
Detention Law (R.A. No. 9439)

It shall be unlawful for any hospital or

medical clinic in the country to detain
or to otherwise cause, directly or
indirectly, the detention of patients
who have fully or partially recovered
or have been adequately attended
to or who may have died, for reasons of
nonpayment in part or in full of hospital
bills or medical expenses (Section 1,
R.A. 9439)

Patients who have fully or partially recovered and

who already wish to leave the hospital or medical
clinic but are financially incapable to settle, in part
or in full, their hospitalization expenses, including
professional fees and medicines, shall be allowed
to leave the hospital or medical clinic, with a
right to demand the issuance of the
corresponding medical certificate and other
pertinent papers required for the release of the
patient from the hospital or medical clinic upon
the execution of a promissory note covering
the unpaid obligation (Section 1, R.A. 9439)

In the case of a deceased patient, the

corresponding death certificate and
other documents required for interment
and other purposes shall be released to
any of his surviving relatives requesting
for the same (Section 1, R.A. 9439)

Patients who stayed in private

rooms are not be covered by this
law (Section 1, R.A. 9439)

Any officer or employee of the hospital or

medical clinic responsible for releasing
patients, who violates the provisions of this Act
shall be punished by a fine of not less than
Twenty thousand pesos (P20,000.00), but
not more than Fifty thousand pesos
(P50,000.00), or imprisonment of not less
than one month, but not more than six
months,
or
both
such
fine
and
imprisonment, at the discretion of the proper
court (Section 3, R.A. 9439)

Republic Act No. 6615, An Act

Requiring Government and Private
Hospitals or Clinics Duly Licensed
to Extend Medical Assistance in
Emergency Cases (R.A. No. 6615)

All government and private hospitals

or clinic duly licensed to operate as
such are hereby required to render
immediate
emergency
medical
assistance and to provide facilities
and medicine within its capabilities
to patients in emergency cases who
are in danger of dying and/or who
may have suffered serious physical
injuries (Section 1, R.A. 6615)

Expenses and losses of earnings incurred by

a private hospital of clinic for medicines,
facilities and services beyond first aid
extended to emergency cases as required
herein, and not to exceed fifty thousand
pesos per year, shall be deductible
expenses and losses for income tax
purposes which may be carried over for
a period of five years, any provision of
law
or
regulation
to
the
contrary
notwithstanding (Section 2, R.A. 6615)

Any hospital director, administrator, officer-incharge or physician in the hospital, medical center
or clinic, who shall refuse or fail without good cause to
render the appropriate assistance pursuant to the
requirements of section one after said case had been
brought to his attention, or any nurse, midwife or
medical attendant who shall refuse to extend the
appropriate assistance, subject to existing rules, or neglect
to notify or call a physician shall be punished by
imprisonment of one month and one day to one
year and one day, and a fine of three hundred pesos
to one thousand pesos, without prejudice to the
provisions of Republic Act Numbered Twenty-three
hundred eighty-two in the case of physicians (Section
3, R.A. 6615)

In the case of government hospitals, the

imposition of the penalty upon the person or
persons guilty of the violations shall be
without prejudice to the administrative action
that might be proper (Section 3, R.A. 6615)

In the case of private hospitals, aside from

the imposition of penalty upon the person or
persons guilty of the violations, the license
of the hospital to operate shall,
whenever justified, be suspended or
revoked (Section 3, 6615)

Summary - Informed Consent

Dual Purpose of Informed Consent

Elements of Informed Consent
Who may give Informed Consent
Quantum of Information for a Valid
Informed Consent
Exceptions to Informed Consent
Documentation of Consent
Informed Refusal and ED Departure
against Medical Advice

Summary - Privacy, Confidentiality

and Reporting

Purpose of HIPAA
What may not be Disclosed
What may be Disclosed
Physician-Patient
Privileged
Communication Rule under Philippine
Law

Summary - Emergency
Transfer in Active Labor

Medical

EMTALA and Patient Dumping

Obligations Imposed by EMTALA

Determining Emergency Medical

Condition
Stabilize
Accept Transfers

EMTALA counterpart under Philippine

Law

Medicine is a calling.
Medicine is a profession.
Medicine is a business.
People in business get sued.
Gary N. McAbee, DO, JD

Food For Thought

Act like the patient is someone you
care about. Act like you have the courage
and intelligence to tell the difference
between necessary and unnecessary care
and testing, and that you have done for
the patient what you would have done for
your own family member.
Henry GL. Common Sense. Ann Emerg Med. 1991; 20:319320