We continue with our series of general educational articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. This attorney is a seasoned veteran.  The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant.  Please give us your feedback – and let us know if you find the series helpful.

The pitfalls in treating minors tend to fall into two areas: who can determine treatment for the minor patient (addressed here in Part 1); and confidentiality / records access issues (which will be addressed later in Part 2).

I. Treatment decisions.

1. I often see teens for routine ongoing dermatology care. Many working parents ask if they can send these older kids in on their own. Some of these kids can drive themselves to my office but the age of majority in my state is 18 so I have been resisting.  Is it legally acceptable for me to treat a minor on their own?

Yes.

You are conflating your ability to see the patient without a parent/guardian being present and settings in which a young patient is allowed to make their own medical decisions.

State laws charge parents/guardians with duties of care for supervision over their children. Obtaining appropriate medical care is deemed part of those duties. The young patient must either have reached the age of majority or have been emancipated to no longer be subject to the medical decision-making of their parents/guardians.

In your case, however, you would only be carrying out care that the parent/guardian has already OK’d.

If a custodial parent or a legal guardian gives you written permission to treat the child for routine care without their presence; the child is of a responsible age (no younger than 13 would be a prudent cut-off); and the treatment does not require sedation or other processes that would impair their ability to get home safely, you can agree to see them without the adult being present.

Of course, you should communicate results and treatment recommendations to the parent/guardian.  Telling the child a result/recommendation or giving him a note (which he may then lose or just not deliver) to give to the parent/guardian may not be adequate. Your duty to keep the adult informed is not delegable to the child.

Also make sure that you have an up-to-date contact number for the parent/guardian in case of emergencies.

2. Our obstetrics practice has a relationship with an urgicare to accept patients with pregnancy issues. Although we limit our core patient population to adults we sometimes get minor patients.  Since this is uncommon for us we are not sure how to deal with their care – are they still fully subject to the treatment choices that their parents or guardians make or is the fact that they themselves are going to be parents a medically emancipating act in and of itself?

It is a general rule that a minor is incompetent to make her own medical decisions, but being a parent herself is often an exception to this. Other such events that can trigger “capacity” in the legal sense are marriage, being self-supporting, or being in the armed forces. However, just being pregnant itself may not be enough so check carefully with your state law.

Since some of these patients may already be parents from a prior pregnancy or may want to continue under your care after they give birth, let’s look at some basic principles about how a minor can gain medical autonomy.

Exemptions from legal status as a minor can take the form of being declared a “mature minor” who is treated as an adult for some purposes; or being fully emancipated and legally a full adult in the eyes of the law for all purposes.

Of course, statutorily-defined maturity in these settings has little to do with actual practical maturity – in fact, a teen parent or spouse may be so precisely because of their immature judgment.  It reflects only the law’s cognizance of the fact they are now engaged in typical adult roles and so are presumptively competent to act as adults in their own care.

This leads us to the essential point: even if the minor comes under an autonomy-granting category, that only confers “legal capacity” on them to make medical decisions.  The other necessary component is “decisional capacity” and whether they have that – whether they can actually make good choices – is then subject to your professional assessment. Just as you would not blindly accept the decisions of an adult who does not seem able to understand treatment issues, you would not do so when dealing with an emancipated minor.

If you do believe that they have decisional capacity as well, then the next step is to determine the degree to which emancipation empowered them.

For example, in many states an unmarried teen mother is emancipated as to making decisions about her child’s care but not her own; while a married teen mother would be empowered as to her own care and even as to that of her spouse as well as her child.

The scope of the decision-making may also be limited to specific care, as in New York where a pregnant minor can decide independently about pre-natal care but is not considered fully emancipated as to medical decision-making about non-pregnancy issues until she has actually had her child.

You also need to take into account whether there are any countervailing statutes, such as a parental notification law for abortion or limits on sterilization, and whether these have an exception for emancipation.

For example, in Georgia a minor can give consent for herself in connection with birth control, pregnancy or childbirth but, if she is unemancipated, then she is subject to a parental notification law for an abortion and is not authorized to consent to sterilization unless she is emancipated through marriage.

Lastly, if the emancipation is based on the minor’s status as a future or current parent you need to know that if that status ends because of miscarriage, abortion, death of a post-partum child, adoption of the child, or other termination of parental rights – the emancipated status ends as well.

Whether the minor is emancipated is also a matter to be considered in your billing.  Emancipation relieves parents and guardians of the obligation to provide support for the now-emancipated minor. This would be an issue in self-pay situations where the parents have been picking up the tab and may also sever an insurance relationship because the minor patient is no longer a dependent of their parents or guardian. Payment issues should therefore be dealt with clearly before you commit to the emancipated minor’s care.

3. I have a 16 year old asthma patient in my allergy practice.  She had a child at 15 and was emancipated based on that. She brought her son to some visits. She has been consenting for all testing and treatment on her own and actually been a good patient. However, I just found out that she actually gave up her son for adoption several months ago. This means that she has been misrepresenting her ability to determine her own medical care for what can be a life-threatening condition all this time. What liability do I face based on treating her during this period?

This will depend on your state law. Most states will do as New York does. It covers this situation under a statute that holds if you act in good faith based on the patient’s representation she may give consent under her emancipating status – that consent will be deemed to be effective.

In this case, she did not actually retain legal capacity to determine her own care. But your reliance on the claim that she was emancipated was both in good faith and objectively reasonable. You actually met her child and the laws of your state allow emancipation based on bearing a child.

You should therefore be protected as long as you now only treat her under the control of a legally-responsible adult.

4. It is a distressing fact that I am seeing more and more teens with STD’s and substance abuse issues in my family medicine practice. Most do not want their parents involved. How much autonomy do they actually have in their own treatment?

Most states permit minors to independently seek treatment for STD’s or substance abuse. The same generally also applies to treatment for an emotional disturbance.

However, there may be a limiting set-off on what that treatment may include.  For example, in North Carolina an unemancipated minor’s request alone is not sufficient to underpin admission to an inpatient mental health or rehab facility.

You should therefore check with your state medical board on the actual regulations in your state.

5. I was covering in the ER when a 14 year old girl was brought in after an MVA.  She was bleeding seriously but was also yelling that she was a Jehovah’s Witness and that we could not give her a transfusion. We called her parents and they told us that she recently converted and was very fervent in her beliefs. But that the family was not of that religion and requested we treat her as needed. She actually had to be temporarily restrained but we did transfuse her. Did we act correctly?

Yes.

Competency to consent to or refuse medical treatment is limited to adults and emancipated minors.  In this case the parents’ wishes were binding and could be enforced as reasonably required.

In that latter regard, though, bear in mind that while the minor may not have autonomous rights over their medical care, the parents’ permission to control their treatment despite their objections does not reduce the minor to chattel status – the patient still has full rights to respectful treatment by the staff, so restraints should only be a truly last resort.

6. One of the hardest parts of being a pediatric oncologist is dealing with kids who know that they are dying.  I have had several of my older patients beg me to not bring them back if they code but their parents refuse to sign for a DNR.  Why doesn’t the choice of a teenager who is confronting their own mortality like an adult matter?

It does not matter because the law does not recognize it as even existing.  Only an adult or an emancipated minor is deemed to have the legal capacity to choose DNR status for themselves.

The wisdom gained through fighting cancer is not considered in “mature minor” statutes, which look only to quotidian activities that only adults typically engage in.

The best option here is to involve an Ethics Committee or pastoral care to try to persuade the parents to see the validity of their teen’s wish. Absent parental consent for the DNR, you are bound by the parents’ wishes.

7. I have a patient in my pediatric practice whose parents are legally separated. They equally share physical custody. The problem is that the dad has become an anti-vaxxer while the mom wants all vaccinations to continue. I certainly favor her approach but since custody is shared I am caught in the middle. Do I vaccinate the kid or not?

You are making a common mistake in assuming that physical custody and legal custody are the same.

These parents are sharing custody subject to a separation agreement or court Order but you do not know which of them actually has legal custody under that or if it otherwise addresses medical decision-making for the child.  You therefore need to have them provide your office with a copy of the court document that will then be maintained in the patient’s file.

If it turns out to be that the mother has the legal authority to make the medical decisions then you may vaccinate on-schedule and the father’s only alternative would be to seek a court Order to block that.

If it turns out the father has that authority then you can terminate the family from your practice if you do not want to support anti-vaccination; but you cannot do an end-run around his designation by having the mother give consent because she does not have the legal capacity to do so. You can, however, suggest she seek a modification of the custody situation from the court and you can offer to provide an affidavit or be a witness for that process.

8. Our hospital is near several summer camps and a military academy covering middle school and high school so we get lots of kids in our ER who need treatment but whose parents are unavailable. If we accept consent from a representative of the camp or the school and the parent then disagrees, are we liable?

State laws generally include those acting “in loco parentis” among those who can give consent to treat a minor if the parent/guardian is absent. Municipalities generally also grant this status to foster parents and to custodial agencies. Camps and boarding schools also usually have such arrangements by contract with parents and guardians.

The designated proxy is then responsible for the medical choices. Those who so-designated them as proxies but later disagree with their choices will have to fight it out with them.

The caveat, though, about your own lack of liability is that your seeking consent from the representative must have been reasonable.

Since your hospital knows that it is likely to receive minor patients from camps/schools, it should obtain legal documentation of the ability of the camps and the schools to act in loco parentis and keep that in its files.

You should also check the ID of anyone who presents themselves as the representative of a camp or the school. If only junior staff accompany the minor, you should the director of the camp or the commandant of the school for a definitive answer on whether you may proceed with treatment.

9. In the ER we often have to contact parents or guardians by phone to get consent to treat a child brought in by EMS. How should we be documenting this process?

You need to document when the contact was made, how you knew whom you were speaking to and what was said, the last point addressing the facts that consent must be informed and that you also obtained relevant medical information.

This contact should also be witnessed, just as the signing of a consent form is.

A sample note would be:

“(Date) (Time) 

With Ms. Jones, head ER nurse, on the extension, I called (phone number) and spoke to the individual who answered.  He self-identified as Bob Smith, father of minor patient Jane Smith. 

He was informed that she had sustained a comminuted displaced fracture of the left femur which would require ORIF.  The risks, including but not limited to, anesthesia complications, bleeding and infection, and the benefits, including but not limited to, improved stabilization and healing,  of the procedure were discussed with him. He authorized the procedure. 

He was questioned about the minor patient’s medical history and stated that she is allergic to penicillin, had an uneventful appendectomy at age 11, currently has no serious health issues and is not on any medications other than Claritin for seasonal allergies.

He stated that he would sign a consent form when he arrived at the hospital.”

You and Ms. Jones would then sign this.  Append this to the consent form when the father signs that document.

You are not responsible for delving into the bona fides of the person on the other end of the line. Your standard is reasonable reliance. That is met if the person is predictably reached at supplied number, self-identifies as the parent/guardian, and sounds legitimately knowledgeable about the minor. That it later turns out that the  parents are divorced and that it was actually the mother who should have given consent under the custody order will not be a basis for liability if you acted reasonably in accepting the father’s proffer to do so.

10. With more parents employed full-time my pediatrics group often has grandparents and even nannies coming in with our patients, many with notes from the parents asking for tests to be done or results given or even saying that the companion can give permission for care. My partners say that it’s good relations with the parents to be flexible but I think that there are real liability issues here.  Who’s right?

You all are. You should try to be accommodating but you also have to make sure to do so properly.

For a parent/guardian who has the legal right to make medical decisions for a minor to send a written message via a third party regarding care is fine as long as it properly authenticable.  It is the low tech version of a phone call or an e-mail sent to the office through a patient portal.

However, for that third party to be able to receive results, the parent/guardian must execute a HIPAA release and must also comply with any stricter confidentiality requirements that your state may have in, even if the recipient is a mere conduit who will just be transmitting a sealed envelope.

To actually place that third party in the role of a medical decision-maker requires an actual legal appointment through a healthcare power of attorney (HCPOA) for the child.

This is a document under which a parent/guardian who is legally empowered to make medical decisions for the minor designates someone else to also consent for such during a time that the parent/guardian is unavailable.  This will most likely be encountered if the parent/guardian is going to be away on long trip but may be practically necessary if they simply work a shift that precludes them from coming into your office.

Remember that capacity to consent (in this case on behalf of a child who is legally incompetent to speak for himself) is a dual calculus – the parent/guardian may confer legal capacity through the healthcare power of attorney (HCPOA) but only you can determine whether the appointed proxy has decisional capacity.  For example, if a nanny seems poorly educated and you are not certain that she understood the medical issues, you should refrain from the care (assuming it is not urgent or emergent) until the parent/guardian can consent.

11. In the ER we sometimes get minor patients who are not just unaccompanied but unconscious and unidentified. Our attitude has always been that we treat as needed but now we have clipboard administrators insisting that if we don’t do all we can to get specific consent from a parent/guardian that we are putting the hospital at liability risk. Are they correct?

No.

The common law premise is that there is implied consent for needed emergency care.

Beyond this, state statutes lay out the criteria under which a minor may receive emergency treatment without the consent of a parent, guardian or someone who is acting in loco parentis.

These statutes generally include the following points:

• The need for urgent treatment is apparent.
• The minor’s identity is unknown or the parent or other authorized person cannot, despite reasonable diligence, be located or contacted during the time within which the minor needs the treatment.
• Further attempts to secure consent from the parent or authorized person would cause an endangering delay in treatment and/or worsen the minor’s condition.

There is also usually an exception for cases in which the parent/guardian is reached but refuses to consent for critically needed treatment and the delay that seeking a court Order would cause would itself endanger the minor patient. In that setting these statutes generally permit treatment to go forward if two licensed physicians agree it is necessary to prevent immediate harm to the minor patient, the colloquially referred-to “2 PC” ( 2 physician consent). When surgery is needed in these circumstances there is often a specific requirement that both physicians be surgeons but there is also usually an exception for rural communities in which getting a second surgeon would itself cause a dangerous delay in treatment.

If your case comes under these criteria you may proceed with treatment.

After saving your young patient’s life you should then document the clinical facts fully in a format that specifically addresses the statutory criteria.

We will address confidentiality issues and access to records affecting minors later in Part 2.

In summary: In general, medical care decisions on minors are solely in the control of parents/guardians. However, there are significant exceptions for emancipated minors and for treatment that public policy favors. It is essential for physicians treating minors to acquaint themselves with state laws as well as HIPAA on these matters.

[Medical Justice notes: Each state is different. You should check with your state licensing board / state medical society to better understand the requirements in your state vis a vis treatment of minors. Fortunately, in situations demanding urgent action, you are generally allowed to take action to save life or limb. Even in situations where a parent wants to dictate care that might harm the patient – eg: parent is Jehovah’s Witness and refuses consent for life-saving transfusion – court order (and you should do all you can to obtain an emergent court order, if time permits) will typically allow you to provide this transfusion to the minor patient. Here, the courts have stated that the parent, while free to refuse care based on their own principles, is not free to risk their child’s life for those same principles.]