Chapter 54: Trauma, Medicine, and the Law

The complexity of the interactions of the medical and legal profession has increased in both complexity and number with each passing year. No longer does the focus relate only to fear of being sued, testifying in court, and preparing for a deposition. There is the added dimension of in-hospital legal council in most hospitals, and they play a significant role in any medical legal situation. This chapter cannot cover all aspects, but will attempt to focus on the major concerns a physician must have when treating an injured patient—the intersection/interaction among trauma, forensic medicine, and the law. Forensic and legal issues surface daily in trauma care but may be overlooked or unidentified due to the urgency of the situation. Health care providers are able to and, indeed, need to provide lifesaving measures and “think forensically” at the same time. By considering the forensic and legal implications, evidence that may be vital to the outcome of a legal case is preserved without impeding appropriate medical care.

Trauma team and law enforcement activities repeatedly intersect in various locations for a variety of reasons in the course of mutual and integrated responsibilities:

• System and organizational regulation and review

• Preventive strategies

• Prehospital care and patient protection

• Disaster planning and response

• Emergency center

• Operating room

• Intensive care units and hospital nursing units and clinics

• Office practice

• Patients complaints and undesirable results

• Formulation of patient care policy and laws

• Licensure

• Quality review and reporting obligations

• Disaster medical response

• Professional liability

• Testifying in court/depositions.

Each year, over 1.6 million people lose their lives throughout the world as the result of violence.¹ Countless others sustain injury. Violence and the social disruption that follows are addressed by everyone involved in trauma care. By understanding the law and the health care forensic implications of the law, identifying and preserving evidence during the course of evaluation and treatment, and accurately describing wounds, the surgeon is not only an indirect advocate for the patient, but also provides much needed information that will be used by law enforcement and the justice system.

Concepts, Principles, and Definitions

Although not standard in every political jurisdiction, some general principles and commonly used definitions are cited in this section. Often a legal and a medical definition or concept might differ. Such variances are perception is important to medical personnel interacting with forensic and legal personnel, especially in a court room, deposition, or adversarial situation.

• Abandonment: Terminating care of a patient without ensuring that a continuum of the same or higher level of care exists

• Assault and/or battery: Unlawful touching of a person or patient without appropriate consent for that contact

• Confidentiality: Protecting medical information for any patient under the care of a hospital, nurse, doctor, or other medical personnel

• Competence: The ability of a patient to understand the questions put to them by health care personnel and to understand the implications of the recommendations and decisions made

• Negligence: Deviation from an accepted standard of care that would be rendered by a similar practioner under similar circumstances

Duty to Treat

In the modern version of the Hippocratic Oath, the phrase, “…there is the obligation to all my fellow human beings, to treat those of sound mind and body as well as the infirm,” establishes the tone of the regulations for a duty to treat any patient who presents with an immediate life-threatening condition.² Wide interpretation discrepancies exist regarding “duty to treat,” depending on urgency of clinical condition, availability of appropriately skilled clinician, availability and infrastructure of treating facility, and availability of higher level of care within the geographic area. In addition, the availability of funding for hospital and clinician has resulted in local, state, and federal regulations to protect patient, practitioner and hospitals. Once a patient enters a treatment facility and on initial evaluation is found to have an immediate life-threatening condition, the obligation to continue the treatment is understood, as is the now established physician/patient and hospital/patient relationship. That relationship continues until one or the other terminates by mutual consent, the services are no longer needed, or the physician properly withdraws from the relationship.³ The Emergency Medical Treatment and Active Labor Act (EMTALA), passed by Congress in response to hospitals refusing to treat patients based upon their ability to pay, requires hospitals and physicians to provide a medical screening examination and stabilizing treatment for patients who present with an emergency medical condition.^3,4 The physician’s duty to treat and/or stabilize the patient for transfer for a higher level of care is clear. Should a physician misrepresent a patient’s condition to facilitate a transfer for any other than higher level of care, civil penalties exist (Legal Information Institute), including fines and exclusion from participating in Medicare and Medicaid programs.^3,4 The Americans with Disabilities Act of 1990 prohibits the denial of individual access to health care based on a disability, unless providing said care poses a direct threat to the health and safety of others that cannot be eliminated by adequate precautions.^3,5 Implicit in these laws is that inability to pay is not an acceptable (or legal) reason for nontreatment of any patient presenting with a life-threatening condition. While implicit to all emergency facilities, this is especially pertinent to designated trauma centers of all levels to provide care to critically injured patients.

The duty to treat a patient does not change, even if the patient is the perpetrator of a violent crime. The fact that the patient was injured or injured others while driving intoxicated or while wielding a gun is irrelevant. The physician has a duty and ethical obligation to treat the patient, regardless of the situation surrounding the injury: Who is the patient’s doctor? Who “owns” the patient? Who “owns the medical record and the ancillary records in the hospital and the doctor’s office?

Consent Issues

Numerous terms and concepts applied to the many consent issues involved in patient care are as follows:

• Expressed consent: A treating health care worker gives his/her permission for recording history, physical exam, and tests, and treating the conditions discovered. The doctor or other health care worker must describe the reason for examination and treatment, the treatment to be rendered, the risks of such treatment, and possible side effects and complications. If in writing, the expressed consent should include the doctor’s name, location of the treatment, and date and time of treatment.

• Implied consent: Under emergency conditions, when patients cannot speak for themselves because of their clinical condition, and surrogate consent cannot be obtained, it is assumed that if a patient or surrogate could so indicate, they would desire lifesaving evaluation and intervention.

• Waived consent: Under some IRB approve research projects wherein a form of treatment does not have scientific universal standards and a new treatment is being evaluated for emergency conditions, and when there is not time to obtain informed consent, the FDA has outlined the conditions for wavier of consent. In such circumstances, it is appropriate to inform the patient and the family as soon as possible after the emergency has transpired and treatment rendered, and to then obtain in writing the fact that the patient and/or family understands and give consent, assent, or understanding.

• Surrogate consent: Both state and hospital policies define who may give informed consent for defined circumstances for a patient whose clinical condition does not allow him/her to speak for themselves or understand the implications of the information given to them.

• Refusal of consent: The adult patient who fully understands the implications of his/her decision may/has the right to refuse to be examined or treated. Under some circumstances, local law or hospital policy requires the local ethics committee or a legal ad litem attorney become involved, especially if the adult refusing treatment has minor children or is mentally incompetent. When evaluation and/or treatment is refused, it is important to adequately document the conditions of the refusal and the various persons involved in advising and interacting with the patient.

Except in urgent life-threatening situations, at its simplest, consent is required anytime a health care provider intends to render care to a patient.⁶ The physician’s (and hospital’s) duty extends beyond obtaining a patient’s signature.⁷ Informed consent includes providing enough knowledge to the patient about the procedure, the risks and benefits, and any alternative treatments for the patient to make an “informed” decision.^6,7 As outlined by the Joint Commission for Hospital Accreditation, this process has several components, which include the nature of care, medications, procedures, possible risks and benefits, and any limitations on confidentiality of information learned from or about the patien.⁸ As one enters an emergency center or is admitted to the hospital, consent to be evaluated and treated is usually obtained. Many patients do not completely read the “fine print” above this simple signature block and are often in a hurry to get on with an emergency evaluation. Beyond this simple entrance signature, additional informed consent is required for more detailed treatment (such as an operation), once that more complex treatment is known to be required.

There are two types of consent: expressed and implied. Expressed consent may be either oral or written,⁶ though written and signed documentation is preferable. Oral (without any written or electronic documentation) consent is difficult to prove/defend in a court of law

In emergency situations, consent is presumed or “implied,”⁶ that is, when a patient presents with traumatic injuries and cannot understand or communicate, it is presumed the patient would want treatment unless there is a living will or an advanced directive specifically requesting no heroic life-saving measures be undertaken.⁸ Rarely does the trauma patient present with such documents, but it may occur, and the trauma team should be made aware immediately. Often, only after a blood transfusion has been begun, does the team become aware that the patient or his/her family is opposed to such intervention. The members of the treating team should, if time permits, attempt to ascertain the presence of any advanced directive or official treatment requests. In obtaining consent, there are several considerations for the surgeon. In certain circumstances (emergency care, emancipated minor), minors, for example, may provide consent without parental involvement in certain circumstances.⁹ Individual state regulations also outline other situations in which minors may give consent, such as treatment for sexually transmitted infections, abortions, contraception, and prenatal care.⁹

In the event a patient lacks the capacity to consent, health care decisions may be made by the patient’s legal representative, a parent, family member, guardian, surrogate, or medical power of attorney.⁶ Hospital policies define the priority of surrogate consent, and these policies usually reflect local or state laws. Competency in medicine is different from the legal connotation. Competency or capacity refers to the patient’s ability to understand what is best and right for him or her, and the decision is autonomous.⁸ Capacity is generally not an issue unless the patient suffers from a cognitive deficit, such as Alzheimer’s disease. Substance abuse or withdrawal from a substance that has caused altered mental status will affect capacity as well.⁹ All attempts should be made to obtain consent. Hospital administrators may assist when there is an issue with capacity and no patient representative present. Under such circumstances, an ad litem (court appointed) representative of the patient might be considered. Local, state, and federal regulations exist defining the process and payment for ad litem representation.

A patient may also refuse to give consent. Competent patients may refuse care, which includes procedures, admission, or a laboratory test.⁸ While troubling and frustrating for the physician, the right to refuse treatment must be recognized and respected. Refusal to consent is usually reserved for a patient who has reached majority. In the case of a parent issuing a “refusal to consent or treat” a minor child, family court judges often get involved with hospital administrations and physicians to determine what is permissible. The physician must consider competency a subjective assessment, and judgment of such falls to medical professionals.¹⁰ The physician must ensure all information is provided and any questions answered so the patient has the data to make an informed decision. This may take time, but it is time well spent if the patient’s immediate clinical condition allows such a delay.

A patient or the patient surrogate gives permission to a specific provider for a specific intervention, and especially in the event of an operation, the patient consents for a specific, named physician to perform the surgery. The consent form should be more specific than general to prevent misunderstandings or vagaries. A consent given to “Dr Smith and Associates” for an “exploratory procedure and all indicated procedures,” is vague and confusing in several aspects. If an “associate” ultimately performs the procedure in the absence of the agreed upon surgeon or an additional associate or consultant is called in to do parts of the procedure or additional procedures, the consult and progress notes should clarify these the events—how/why occurred, and the name of the surgeon performing the procedure should be written on the consent, with the approval of the patient.

For some approved, randomized research studies under critical and emergency conditions, the United States Food and Drug Administration allows for waiver of consent, but such must be under strict review and protocol by the FDA and local investigational review boards (IRBs). For these protocols, the patient must not be able to give meaningful consent because of his/her clinical condition, and time to treatment is critical. Prepatory to initiating research that is conducted with waivers of consent, researchers educate the community about the protocol and publicize an “opt out” method for the potential patient population. The patient or the family should be informed of the study at the first available time. At any time after enrollment, if the patient or the family wishes to be removed from the study, that option should be available. With consultation among the study coordinators, the local approving IRB, and the FDA, waiver of consent can provide new and valuable evidence based data that benefits patients and society.

HIPPA, Patient Privacy, Electronic Medical Records, Photography, and Social Media

Federal law (HIPPA), and hospital policy protect patient privacy, hospital medical record, and physician confidentiality in matters of peer review. With the introduction of the electronic medical record and ever-expanding social media availability on every smart telephone, new and stricter surveillance and control became necessary to ensure privacy and confidentiality.

All hospital and personal electronic devices (computers, smart phones, smart pads, etc) have the capacity for misuse and transmission, deliberately or accidentally, of sensitive patient or medical staff information to the Internet or to other devices, worldwide. This same sensitive information is now also at risk for hackers. Internal controls must be in place for surveillance, detection, and rapid response if violations are discovered.

Many hospitals have developed policies and protocols to allow, and even encourage, use of smart phones to take appropriate photographs of forensic, intraoperative, pathologic, and other material that is clinically significant. Software and “apps” exist that then allow transfer of this photographic material from the phone to the EMR, with subsequent deletion of the material from the smart phone.

Forensic and Medical Implications

The very nature of traumatic injuries leads one to consider forensic implications. The legal impact may be great in certain cases. For example, preserving the clothing in gunshot cases may be critical to the outcome of courtroom proceedings. Obtaining blood samples from a potentially intoxicated driver is considered essential in some political jurisdictions. The local laws concerning a hospital or physician’s rights and responsibilities in ordering laboratory data for the sole purpose of obtaining forensic evidence are inconsistent, and clinicians must be cognizant of hospital, local, and state regulations. Traditionally, forensic issues have not received much, if any, priority, since lifesaving measures are the primary objective. However, given an understanding of the basics and a desire, physicians and other providers are quite able to render necessary care while also taking care to appropriately preserve evidence.

Forensic Nursing and Trauma Systems

Proper evidence collection and preservation may be accomplished with the assistance of forensically trained personnel. Forensic nursing has emerged during the past two decades to become a recognized function of emergency medicine, public health, hospital nursing practice, and trauma care. Trauma care extends across many venues, including EMS, the shock rooms, imaging locations, operating rooms, intensive care units, nursing hospital units, follow-up clinics and the morgue. The forensic nurse is specially educated and trained in both the health care and legal arenas¹¹ and provides direct services to patients, physicians, the trauma management and evaluation teams, regional trauma review processes, general nursing, medical and law related agencies, and expert court testimony.¹¹ Affected patient populations include victims of sexual assault, interpersonal violence (domestic violence, physical assault, dating violence), elder maltreatment, and child abuse, among others. The forensic nurse is trained in injury identification and documentation, forensic photography, evidence collection, death investigation, and addressing the psychosocial needs of the patient and family. These nurses may be present in the trauma room to collect and preserve evidence and document injuries through photographic means or using body diagrams. Clothing, for example, as it is removed, is handed to the forensic nurse, who places and appropriately labels each piece in separate containers to prevent contamination. The forensic nurse interfaces with law enforcement agencies to release evidence. In addition, bullet fragments removed during surgery may be given to the forensic nurse who ensures chain of custody and release to the investigating agency.

Patients presenting with traumatic injuries may not be able to provide a history of the precipitating event. The forensic nurse anticipates the types of evidence that may need to be preserved, and his/her presence in the trauma room allows the surgeon to focus on lifesaving measures, while confident that evidence is appropriately preserved. Information, including photographs obtained for forensic purposes, is logically available during the trauma quality review process, and once identification markers have been removed (HIPPA requirements), might also be very helpful in clinical scientific preparations for publication.

Injury Identification, Classification, and Grading

The trauma center, along with the trauma system, has many responsibilities, not the least of which is evaluation of injuries, underlying nontrauma conditions, assessment of risks, classification of injuries, and some sort of grading as injuries are entered into appropriate registries for quality and epidemiologic review. A broad injury documentation of “laceration” or “stab wound” may be insufficient. Use of an established injury classification schema is essential, such as those developed by professional organizations (American Association for the Surgery of Trauma, American College of Surgeons, and others). Such classification and grading systems are consistent with ICD-9 operation codes, CPT codes, and regionalized trauma registries. However, it is not always immediately clear that a wound is caused from a blunt or penetrating source, or even the identity of a specific wounding agent. Therefore, the final coding by the trauma service is determined at the end of the hospital admission.

Forensic determinations should not be arrived at until all data is collected. For example, “blunt force trauma” can cause lacerations, abrasions, contusions, and fractures and refers to wounds caused by an impact with a blunt object. Blast force is similar to blunt force and can create similar injuries. The injury severity depends on the amount of force, the area of the body involvement, when the injury occurred, and the object used.¹² External cutaneous characteristics used to identify blunt force trauma include tears in the skin that are not easily approximated, jagged edges and abrasions on the wound edges, bruising, and discoloration.^12,13 Contusions vary in color based on the time interval from wounding and the amount of healing process. Skin tone and turger affect the appearance of bruises.¹² Therefore, from a forensic standpoint, it is recommended that contusions NOT be dated or aged, but, rather, careful, detailed documentation of the color(s) is suggested. Sharp force injuries consist of stab wounds and cuts. A stab wound is a wound that is deeper than it is wide, while a cut is longer than it is deep.¹² Smooth edges and the lack of tissue bridging are characteristic, and wound edges may easily be approximated.¹² In blunt force injury scenarios, a detached or sharp piece of the environment, such as a portion of a disintegrating automobile, may produce penetrating wounds, in addition to the blunt force injury.

Wounds From Firearms

Firearm injuries may be identified as gunshot, shotgun or rifle wounds and vary in nature based on the type of weapon used. For the purposes of this chapter, gunshot wounds will be the focus, as these are often encountered by physicians managing trauma patients Physical findings in and around the wound are naturally clinically important to the trauma team, but they also provide evidence that is often equally useful in the police investigation, so accurate and complete documentation of findings is essential.

From a practical, clinical standpoint, whether the wound site is entrance or exit is immaterial. The decision for an operation is not based on direction of the trajectory, but rather on disruption of vital tissues or organs, obstruction, ischemia, or contamination Initially, it is difficult to discern an entrance wound from an exit wound, so careful inspection is required if the clinician or forensic nurse is seeking such information. Entrance wounds are divided into four categories (distant, intermediate, close, and contact), based on the range of fire or distance from the muzzle to the victim.¹⁴ Normally, when a gun discharges, more than just the bullet exits the end of the gun barrel. Hot gases and burning gunpowder are expelled. Depending on the range of fire, evidence of these may be present in and around the wound. In distance wounds, the only evidence is the presence of the bullet and/or fragments, and entrance site is characterized by an abrasion surrounding the wound.¹⁴ Powder burns or “powder tattooing” are characteristic of intermediate gunshot wounds, appearing as red-brown or orange-red punctate wounds around the entrance wound.¹⁵ Soot or gunpowder is deposited around the wound in the close-range gunshot wound, with soot concentration varying with the distance of the muzzle to the victim. The muzzle of a handgun is typically six inches or less from the victim.¹⁴ Finally, often confused with exit wounds, the contact wound is usually a large wound, with the muzzle of the gun having been pressed against the skin. These wounds, generally head wounds, may have searing or burning of the wound edges due to hot gases expelled from the gun.¹⁴ The stellate wounds contain soot around and often inside the wound.¹⁵ Exit wounds are typically larger and slit-like in appearance.¹⁵ The amount of energy on the bullet as it exits the skin determines the size of the wound.¹⁴ The “yaw” or spinning and the shape of the bullet may contribute to wound irregularity.¹⁴ It is better for the clinician to merely document the characteristics of a wound, rather than speculate about kinematics. Inconsistent findings between the surgeon and a medical examiner may prove detrimental to a court case, so be precise and accurate in your documentation. While this chapter is not intended to address kinesiology or wound ballistics, a basic working knowledge is helpful from both clinical and forensic standpoints. For cases involving gunshot wounds where it is known or suspected the patient may have been the shooter, bagging the hands for later examination by forensic investigators is advocated, when possible.

Bullets and fragments removed during emergency treatment are evidence. In preserving the evidence and ensuring appropriate “chain of evidence,” there are several cautions and principles. In removing a metallic foreign body the following considerations are important:

• Avoid using a metal instrument to extract the metal foreign body. Metal on metal creates “scoring” on the missile that might distort the forensic evidence.

• Avoid dropping a metallic missile into a metal container—again, may score the missile. Gently place the foreign body into the routine plastic specimen and tissue cups available in hospitals, ensuring that a patient label is on the side and cap of the specimen cup.

• Do not scratch your initials and the date on the foreign body. Use appropriate/approved methods of documentation, in accordance with the established hospital policy of managing forensic evidence and the chain of custody. Ensure that the container is properly labeled and contains the date and time, with tape positioned over the top and on the container.

• The physician removing the foreign body should record in the written or electronic medical record and the operative dictation the details of the foreign body removal and to whom the missile was given, as well as the instructions given to this individual.

• The person receiving the foreign body and placing it into the plastic cup should also document same in the record, as well as to whom the container was given (hand-off).

• The exact process and the offices where forensic evidence is maintained in each hospital are determined by each hospital and clearly stated in that hospital’s “chain of evidence” policy.

Clothing

Clothing that may contain valuable evidence for the police investigation is often cut and discarded on the floor or thrown into the garbage. When possible, avoid cutting through defects or holes, which can destroy evidence. Cut around the defect or along the seam, placing individual items of clothing in separate paper bags. The top of the bag is folded over, sealed with tape, and labeled with the examiner’s initials.¹⁶ The forensic nurse expedites and ensures good procedure in handling, photographing, packaging and labeling clothing. Once bagged, the clothing will be released to law enforcement or stored in an appropriately locked area of the hospital.

Blood Specimen Collection for Law Enforcement Purposes

Trauma patients present under many circumstances, and in some instances, the patient is the alleged perpetrator of a crime. Often, and primarily for legal rather than clinical reasons, there is a need to identify any illegal substances or high levels of alcohol, since toxicology results impact charges and sentencing of defendants. Forensic toxicology studies are performed in crime laboratories where assays identify and quantify submitted specimens. Laboratory studies conducted in hospital laboratories are used for determining medical treatment, and the routine consent to treat covers the process of obtaining these specimens/studies. However, obtaining specimens for legal reasons is a different matter, and local and state laws differ with regard to the need for patient (or surrogate) permission for blood, urine, tissue, or exhaled air specimens. All members of the treating team should know the dictates of local/state law, as well as related individual hospital policies. When laws and/or policies do mandate patient/surrogate consent, the physician must ensure the patient’s cognitive condition allows for informed consent. Some states have mandatory requirements while others require a search warrant or court order for specimen collection.¹⁷

Blood samples should be obtained within 3–4 hours of a trauma incident to provide accurate blood alcohol content, and it is critical to ensure specimen collection times are accurately recorded.¹⁷ Commercial specimen collection kits are available to aid in collection and chain of custody.

Chain of Custody

Chain of custody is the “paper trail” that documents each person who has custody and control of a particular piece of evidence or a specimen.¹⁶ The chain begins with the person who collects the evidence and continues with each subsequent person who handles the evidence until it reaches the crime laboratory. The following information must be documented in the medical record¹⁸:

• Each person who handled the specimen(s)

• Name and badge number of the officer receiving the specimen/evidence

• Other law enforcement agency personnel who might be present

• Date and time the specimen/evidence is released

Failure to maintain and appropriately document the chain of custody opens the door for attorneys to dispute the validity of the evidence.¹⁸

Legal Considerations During Disasters

The principles of interaction between medicine and the law should not change in the face of a disaster situations. The principles relating to licensure, credentialing, and consent continue to apply, even in extreme or special circumstances. The fact that a physician (or other health worker) may be from an outside geographical or political jurisdiction does not remove the organizational and personal responsibility to comply with local credentialing and licensing laws. During disasters, supplies, equipment, and personnel may be altered, but the responsibility for the physician and the clinical team to comply with professionalism and standard best practices within their capability and resources still applies. Record keeping may be a challenge, but detailed and accurate records must be the undisputed goal during these times.

During a disaster, all personnel working in the hospital are subject to the bylaws and policies of the hospital, as well as state and local law. All questions relating to medical authority, supervision, coordination, and action during the time of a declared disaster in regional shelters are subject the Regional Incident Command structure and its Medical Branch. Any outside agency must function under the authority of the regional authority, unless subject to a federal law.

Interacting With Attorneys

Hospital Bylaws, Committees, Credentialing, Policies

As part of any hospital, clinic, or health department function, and especially in any trauma care facility, it is axiomatic that surgeons and other trauma team members will interact with attorneys on a frequent basis. Most hospitals, medical schools, and medical facilities have in-house or consulting legal counsel that assist, among other things, in the preparation of bylaws, policies and procedures, credentialing, outside regulatory review, and the interpretation of local, state, and federal law. Remember that these attorneys are hospital employees and the interests of the hospital are their primary concern. The medical staff bylaws govern and “belong to” the organized medical staff. As bylaws are revised to adapt to changing regulation and policies, it is imperative that the bylaws committee members review every word and phrase in detail and carefully, with the goal of keeping the bylaws in the best interest of the organized medical staff. In some instances it is advisable for the organized medical staff to employ their own legal counsel to ensure that medical staff’s interest have not been compromised when bylaws are written or modified.

Professional Liability, Depositions, and Testifying in Court

Despite best intention to practice the highest quality of medicine possible, dissatisfaction, complications, and misadventures will occur in all treatment environments. At the hospital level, such events are reviewed during the hospital quality review process, including mortality and morbidity meetings, performance improvement committees, peer review committees, and sentinel event committees. Except for criminal cases, the minutes and proceedings of these reviewing entities are protected from discovery. Physicians should participate in these hospital activities, including reviews of their own cases. In the course of caring for trauma patients, being named in a malpractice suit, being asked to peer review records of another physician, and being asked to testify in court about an injury are not uncommon. On receipt of a subpoena, the first step is to contact your attorney and/or in-house counsel and insurance carrier. From that moment on, talk to no one else about the case without the advice and/or presence of your attorney. Prepatory to a deposition, review all related records to the depth and detail you would in preparing for a board exam. At the time of a deposition or court testimony, listen carefully to every question asked, and answer that question; do not volunteer any additional information (even when sorely tempted)! If you do not understand the question, so indicate. If you are interrupted by the judge or an attorney, stop talking (in mid sentence, if necessary) and listen carefully to the nature of any objection or interruption. Do not continue until your attorney or the judge advises you to do so. You may ask that a previous response or question be read back to you by the court recorder. If you have authored/coauthored published articles, be prepared to defend your writings.

Two categories of witnesses exist—expert and fact. A fact witness is called to enter into the record facts as they remember them, discover them in the medical record, or otherwise glean information. An expert witness is certified by the court as having special knowledge and is called upon to elaborate on information pertinent to the case from the vantage of his/her special knowledge, background, and experience. An expert witness might also be a fact witness, but not usually visa versa. Again, the expert witness must be prepared to have all he/she ever said, wrote or did come under very careful scrutiny.

Classic key points to remember (adapted from Trauma, 2nd edition)¹⁹:

1. When in doubt and time and life are running out, TREAT.

2. Have available in the trauma center specific instructions for judicial intervention and emergency psychiatric detention.

3. Be mindful of Hippocrates admonition, “which ought not be spoken of abroad, I will not divulge, as reckoning that all should be kept secret.”

4. Compliance with local reporting laws is essential to the avoidance of potential criminal penalty and civil liability.

5. The police department’s duty is containment and control; the trauma team’s is care and cure. To each his own.

6. Avoidance of malpractice claims depends on the exercise of skill based on knowledge of reasonable, ordinary, prudent physicians under similar circumstances.

7. An unfavorable outcome does not, of necessity, imply or result in a legal lawsuit; if such were the case 50% of all attorneys in court cases would be so guilty.

8. Standing orders, best practices, protocols, guidelines, and electronic recommended practices all have value, but the ultimate hallmark of the professional is the exercise of sound judgment in any particular case.

9. Records must be made for the patient’s benefit, not the attending physician, hospital, attorneys, or quality surveillance. Records must be complete, accurate, timely, legible, and honest. Corrections to records can be made, dated, and timed, but the original entry must not be removed.

10. Difficulty and recurring problems can be more efficiently resolved through judicious preconsideration and planning.

11. The physician is an integral and essential part of the judicial system, and knowledgeable participation will benefit the physician, his or her patient and health care in general.

12. Common sense and human care and communication can be as important insulation factors from legal liability as good technique and clinical care.

13. Freely use consultation and escalation of concerns when indicated. There are always persons, processes, and resources to provided unknown, unfamiliar, or clarified information.