Consent
Authorization which changes an otherwise unlawful (touching, or battery) into a Privileged One
Duty of care
Hospitals, Physicians & other licensed personnel have duty to protect patient
Patient Self-Discrimination Act of 1990
Protects the right of the patient to make decisions regarding their own health care, including the right to accept or refuse medical or surgical treatment
What does consent require
1.Competent , adult patient (special circumstances: spouses, custody of law enforcement, & HIV testing)
2. Minors: all persons under 18 must have consent of parent or legal guardian/conservator or & exception adjudicated by the courts
Informed consent
Must be obtained by patient or someone authorized to consent
What roles do nurses, physicians, & hospitals have in obtaining informed consent
Nurses; Have no duty
Physicians: Duty to get Informed consent
Hospitals: May have duty, i.e. Radiology consent for contrast, visiting
Lack of consent
Standard is information that is ordinarily provided by other physicians, Case studies, Davis v Hoffman, Ramos v Pyati
CASE STUDY; DAVIS V HOFFMAN
Claim said duty of physician, patient claimed "battery" because the physician failed to get consent, it was the Nurse who got the consent
CASE STUDY: RAMOS V PYATI
Thumb surgery went beyond what the patient consented - malpractice was filed
Elements of a Valid, Informed consent
Diagnosis, Purpose of procedure, all material risks & consequences of procedure, assessment of likelihood procedure will accomplish desired objective, reasonable, feasable,alternatives for treatment, prognosis if no treatment is provided, signed by patien
Verbal consent
If proved, is as binding as written, no requirement that a patients consent be in writing, but more difficult to collaborate oral consent
Written consent
Preferred over oral consent, provides evidence of a patients wishes (191)
Federal rules to Medical Interpreters
Provide qualified language interpreters, Title six of the Civil Rights Act of 1964 stipulates that
federal institutions must offer language assistance to persons with limited language proficiency, and that no person shall be subjected to discrimination on
Right to refuse treatment
Against medical advice (AMA) , hopefully patient signs right to refuse treatment form but if not you just need to record "patient refused to sign." case study: Schloendorff v Society of NY hospital
CASE STUDY: Schloendorff v NY Hospital - Note Justice Cardozo statement (pg 196)
plaintiff, Mary Schloendorff, was admitted to New York Hospital and consented to being
examined under ether to determine if a diagnosed fibroid tumor was malignant, but withheld consent for removal of the tumor. The physician examined the tumor, found it
What was Justice Cardozo's statement
Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault for which he is liable in damages. This is true except
Express consent
No legal required written consent, may be verbal (have a witness) but ultimately want Written consent
Implied consent
Generally be presumed when immediate action is required to prevent death or permanent impairment of patients health. ie. patient holds out arm, emergency, statutory
Statutory consent
A statute that authorizes a test ( urine, blood, etc.) and an action for assault and battery will not be upheld." ( i.e. child abuse physician can take skeletal x-ray only)
Limited power of attorney
Authorizes for example school officials, teachers, & camp counselors to act on the parent's/or legal guardian's behalf when seeking emergency care for injured students or campers.
Judicial consent
May be necessary when there is concern to the absence or legality of consent
Types of consent
General & Special
General consent (Notes- pg 70)
Observe hospital rules, ie no smoking in rooms, no visitors past visiting hours...
Special consent
1. When there is unusual risk to patient
2. When the patient is a Minor
Who may consent
Adults 18 years of age and older, Consent must be obtained from a person who is empowered to consent on the patient's behalf,
Incompetent Patients
The ability to consent to treatment is a question of fact", patients adjudicated incompetent, (a person who is mentally incompetent) pg195
Treatment of Minors
Requires the consent of parent or legal guardian, "In loco parentis", someone standing in
When is Parental consent not needed to treat a minor
Minor is married, or emancipated, "Benefit to the Minor" test: "Benefit may be physical
Emergency Room Rule
May be invoked when the patient is unconscious and two requirements are met.
What 2 requirements must be met in the Emergency Rule
1. Must be a "bonafide" emergency
2. Treatment is necessary
(You have no reason to believe they would not consent)
What is the Objective test used by courts in the Emergency Rule
1.Would patient's condition detiorate w/o treatment?
2. Did they use "Standard of Care"?
Documentation that an emergency existed
Use of "Court authorization" in an emergency, often for minors, medically incompetent,take away rights of parents in order to
What condition must be met to obtain Court authorization
True Emergency
Right to refuse treatment
Any person, regardless of religious beliefs, has the right to refuse treatment, case study: Perkins v Lavin
CASE STUDY: PERKINS V LAVIN
Plaintiff is a Jehovah's Witness. She gave birth to a baby at defendant hospital on September
26, 1991, and was discharged two or three days later. After going home, she began hemorrhaging and was forced to return to the hospital. She specifically informe