Malpractice, Deliberate Indifference, & Regulatory Compliance

Malpractice in the community is an endpoint that begins with a duty to care and/or to supervise, a deviation from the standard of care, damage that occurs, and direct causation. Emergency medicine, critical care physicians, and other medical and surgical specialists of The Forensic Panel focus on questions of standards of care, and to what degree and deviations related to an outcome with damaging consequences. In cases involving prisoners, a deliberate indifference standard requires a different inquiry from examining physicians.

Breaches of standard of care commonly include, but are not limited to: failure to diagnose; failure to treat; care or surgery that runs contrary to recommended practice; or lack of informed consent Ė including a failure to account for potential side effects or consequences of the treatment.

The Emergency Medical Treatment and Active Labor Act (EMTALA) regulates patient referral, transfer and its relation to stabilization, and are often central to negligence cases but may be part of billing disputes as well. CMS and Joint Commission regulatory compliance and interpretation is similar to the EMTALA but reflect different sets of rules and regulations. Clinical physicians with administrative experience and knowledge can bridge the gap between what is often incompletely defined legal imperative and acceptable clinical practice. In this regard, The Forensic Panelís expertise includes treatment decision-making at a senior level necessary for such arbitrator oversight.

Medication error and medical omissions are also included in the expertise of The Forensic Panelís emergency and critical care medicine, and other physician and forensic nursing specialists. Incomplete patient information, unavailable drug information, miscommunication of drug orders, lack of appropriate labeling, and environmental factors can derail health professionals from their customary responsibilities, leading in some cases to damaging outcomes.

Whether or not damage directly resulted from a deviation from standard of care is a matter that very much benefits from the oversight of The Forensic Panelís peer-review. Physicians with complementary areas of expertise inspire a thorough consideration of possible mechanisms of damage and bad outcomes. Peer-review minimizes bias, and ensures conclusions reflect current prevailing standards of emergency, critical care, and other specialties.