A classic problem is children brought to the emergency room with conditions
that are not life- threatening. The child, who may be medically able to consent
to treatment, is legally unable to consent because of his or her age. An
example is the problem of the 14-year-old who has broken an arm and is
brought to the hospital by a neighbor. Neither the child nor the neighbor is
legally able to consent to treatment. The cases hold that the physician may
rely on the emergency exception to consent only if immediate care is
necessary to preserve the use of the child’s arm.
The case law on the definition of an emergency for the treatment of children is
so restrictive because the only cases that are brought to court involve bizarre
facts, such as children being brought in for elective surgery without, or against,
their parents’ consent. If parents were suing a physician because he or she
relieved their child’s suffering, the issue would quickly shift from the physician’s
liability for malpractice to the parents’ liability for child abuse and neglect. In
general, it is better for the physician to be explaining to a jury why he or she
helped someone rather than stand by and watch the child lose life or limb.
Most states have passed laws that allow family members other than parents to
consent to care for children and otherwise make it easier to care for children in
the emergency room.