Ethical and Legal Issues in Health Care? Discussion Topic In this forum, discuss what do you think are some key ways consent?differs?among competent patients, minors, guardians, and inco

Patient Consent

Consent • Voluntary agreement by a person who possesses sufficient mental capacity to make an

intelligent choice to allow something proposed by another to be performed on himself or herself.

Forms of Consent – Express consent

• Verbal • Written

– Implied consent • Act or silence raising presumption consent has been authorized

– e.g., treatment of accident victim Informed Consent • Legal doctrine where a patient has right to know potential risks, benefits, & alternatives

of a proposed procedure. • Patient has absolute right to know about & select from available treatment options.

Physicians Informed Consent • Informed consent is predicated on the duty of the physician to disclose sufficient info to

enable the patient to evaluate proposed medical or surgical procedures before submitting to them.

• Physicians expected disclose risks, benefits, & alternatives of recommended procedures. – Disclosure: what a reasonable person would consider material to a decision of

whether to or not to undergo treatment. Nurses Informed Consent • Nurses most cases have no duty to

– advise a patient as to a surgical procedure to be employed – may confirm physician has explained the procedure – witness patient’s signature on consent form

Hospitals Informed Consent • Not generally responsible for informing patients as to the risks, benefits and alternatives. • Some cases in which hospitals have a duty

– CT Scans – MRI Imaging

Patients Informed Consent • Patient's ability to:

– understand risks, benefits, & alternatives – evaluate info provided by the physician – express his or her treatment preferences – voluntarily make decisions regarding his or her treatment plan

Course of Treatment Patient’s Decision – I

Elderly woman living alone fell & fractured her hip. An orthopedic surgeon reviewed the patient's condition & decided that rather than utilizing a pinning procedure for her hip, it would be better to adopt a conservative course of treatment, bed rest. Course of Treatment Patient’s Decision – II • Prior to her injury, plaintiff maintained an independent style of living. • Expert testimony at trial indicated that bed rest was an inappropriate treatment.

– Was the patient successful for not being informed as to alternatives courses of treatment?

Yes! Court’s Decision • Court held that it is necessary to advise a patient when considering alternative courses of

treatment. The physician should have explained medically reasonable invasive & noninvasive alternatives, including risks & likely outcomes of those alternatives, even when the chosen course is noninvasive.

−Matthies v. Mastromonaco

Lack of Consent – I Patient had multiple medical diagnoses. Her physician, Dr. Sottiurai, ordered bilateral

arteriograms to determine cause of the patient's impaired circulation. De La Ronde Hospital could not accommodate Sottiurai's request & patient was transferred to Dr. Lang, a radiologist at St. Jude Hospital.

Lack of Consent – II Lang performed a femoral arteriogram, not the bilateral brachial arteriogram ordered by

Sottiurai. The patient was prepared for transfer back to De La Ronde Hospital. Shortly after the ambulance departed, patient suffered a seizure in the ambulance & was returned to St. Jude. Riser's condition deteriorated & died 11 days later.

– What did the trial court determine?

Trial Court Decision – The district court ruled for the plaintiffs, awarding damages in the amount of

$50,000 for Riser's pain and suffering and $100,000 to each child. Lang appealed. – On appeal, what did the appeals court determine?

Appeals Court’s Decision • The Court of Appeal held that Lang breached the standard of care by subjecting the

patient to a procedure that would have no practical benefit to the patient, that Lang failed to obtain informed consent from the patient.

−Riser v. American Medican Intern, Inc.

Information to be Disclosed – I • Physician should provide as much information about treatment options as necessary

based on a patient's personal understanding of physician's explanation of risks of treatment & probable consequences of treatment.

• Needs of each patient can vary depending on age, maturity, & mental status.

Information to be Disclosed – II • Individual responsible for obtaining consent must weigh importance of giving full

disclosure to the patient against likelihood such disclosure will adversely affect the patient’s decision.

Information to be Disclosed – III • Courts generally utilize an "objective" or "subjective" test

– to determine if a patient would have refused treatment if the physician had provided adequate information • as to the risks, benefits, & alternatives of the procedure.

Objective Test • Take into account characteristics of the plaintiff

– idiosyncrasies, fears, age, medical condition, and religious belief • Must show that a “reasonable person” would not have undergone a procedure if properly

informed.

Subjective test • Relies on credibility of the patient’s testimony • Patients must testify & prove they would not have consented to the procedure(s) had they

been advised of the risks.

Adequacy of Consent • Patient understand risks, benefits, & alternatives • Evaluate the information provided • Express treatment preferences • voluntarily make decisions regarding treatment plan

Written Consent Describes – I • Nature of the patient’s illness • Procedure consented to • Risks & probable consequences of the procedure • Probability that the proposed procedure will be successful

Written Consent Describes – II • Alternative methods of treatment

• Associated risks & benefits of each • Indication the patient understands nature of proposed treatment • Signatures dated & signed

– patient – physician – witnesses

Special Forms of Consent • Consent for Routine Procedures • Consent for Specific Procedures • Implied Consent • Statutory Consent

• Judicial Consent Statutory Consent • Consent generally assumed

– Ambulance Care • Good Samaritan Statutes

– Emergency Departments • When patient clinically unable to give consent

Judicial Consent • May be periodically necessary • When alternatives exhausted • 2nd opinions by consulting physicians helpful • On-call legal advice should be sought

Who May Consent • Competent patients • Guardianship • Consent for minors • Incompetent patients • Limited Power of Attorney

Right to Refuse Treatment • For any or no reason

– Mere whim – Religious Beliefs

– Blood or blood products – Impatience

• Text Case: Good People Bad Decisions Release Form • Completed release provides documented evidence of a patient's refusal to consent to a

recommended treatment. • Patient's refusal to consent to treatment, for any reason, religious or otherwise, should be

noted in the medical record. • A release form should be executed.

Informed Consent Defenses • Risk not disclosed is commonly known. • Patient assured practitioner he would undergo treatment regardless of the risk. • Consent not reasonably possible. • Patent did not want to know about the risks. • Physician disclosed what he considerable reasonable

Ethics Informed Consent • Individual Autonomy

– Informed consent protects the basic right of the patient to make the ultimate informed decision regarding the course of treatment to which he or she knowledgeably consents.