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.