Discussion 09.2: Living Will

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Chapter 14

Patient Consent

Rights & Responsibilities

Learning Objectives

Discuss the difference between verbal, written, & implied consent.

Describe the role of the patient, physician, nurse, & hospital in informed consent.

Describe the theories under which the validity of consent might be proven.

Explain how consent differs among competent patients, minors, guardians, and incompetent patients.

Learning Objectives, cont’d

Discuss the importance of understanding patient rights.

Discuss the importance of understanding patient responsibilities.

Patient Consent

[N]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person.

—Union Pacific Ry. Co. v. Botsford

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 can take the form of

Verbal agreement

Written document authorizing medical care

Implied consent

Determined by some act or silence, which raises a presumption consent has been authorized

Generally applicable to emergency situations

Informed Consent

Legal doctrine where a patient has a right to know potential risks, benefits, & alternatives of a proposed procedure.

Patient has absolute right to know about & select from available treatment options.

Predicated on duty of physician to disclose sufficient information to enable a patient to evaluate proposed medical or surgical procedures before submitting to them.

Informed Consent, cont’d

Verbal Consent

Binding as written consent

More difficult to prove

Written Consent

Visible proof of a patient’s wishes

Elements of Informed Consent

Nature of patient’s illness or injury

Procedure or treatment consented to

Purpose of proposed treatment

Risks & probable consequences of the proposed treatment

Probability proposed treatment will be successful

Elements of Informed Consent, cont’d

6. Alternative methods of treatment, risks & benefits

7. Risks & prognosis if no treatment is rendered

8. Patient understands nature of proposed treatment, alternatives, risks, & probable consequences of treatment

9. Signatures of patient, physician, & witnesses

10. Date the consent is signed

Implied Consent

Unconscious patients are presumed under law to approve treatment

Generally presumed when immediate action is required to prevent death or permanent impairment

Unconscious patients presumed to approve treatment

Emergency from auto accident

Statutory Consent

Legislation Allow Emergency Care

Eliminating need for written consent.

Presumption

A reasonable person would consent to lifesaving medical intervention.

Document need for immediate care

Attempt to contact family

Consider court order if necessary

2nd Opinion when in doubt

Judicial Consent

May be necessary in those instances where there is concern as to the absence or legality of consent.

Judge should be contacted only after alternative methods have been exhausted.

Some courts may require an attorney to initiate the call.

Written protocol should be available in ED.

Ensure staff education & training.

Physicians Informed Consent

Physicians are expected to disclose to patients risks, benefits, & alternatives of recommended procedures.

Disclosure should include what a reasonable person would consider material to his or her decision of whether or not to undergo treatment.

Doctrine of informed consent is firmly rooted in the notions of liberty & individual autonomy.

Informed consent is not merely a tool to avoid lawsuits.

Physicians Informed Consent Cases

Physicians Must Disclose Alternatives

Paternalism Fails

Physicians Duty to Advise: Delicate Medical Judgment

Adequacy of Consent

Lack of Consent

Course of Treatment Case: Patient’s Decision

Elderly woman living alone fell & fractured her hip.

Orthopedic surgeon ordered bed rest

Plaintiff maintained independent style of living

Expert testimony

Bed rest inappropriate treatment

Patient successful in proving

she was not informed of alternative treatment

Course of Treatment Case: Patient’s Decision, cont’d

Yes!

Court held “necessary to advise a patient when considering alternative courses of treatment”

Physician should have explained alternatives

Risks & likely outcomes of alternatives

Matthies v. Mastromonaco

Lack of Consent Riser v. American Medical Intern, Inc.

Patient had multiple medical diagnoses.

Physician ordered bilateral arteriograms to determine cause of patient’s impaired circulation.

Hospital could not accommodate physician’s request & patient was transferred to a radiologist at St. Jude Hospital.

He performed a femoral arteriogram, not the bilateral brachial arteriogram ordered by the ordering physician.

Patient was prepared for transfer back to De La Ronde Hospital.

Shortly after ambulance departed, the patient suffered a seizure in the ambulance & was returned to St. Jude.

Lack of Consent Riser v. American Medical Intern, Inc., cont’d

Patient’s condition deteriorated & died 11 days later

Plaintiffs claimed patient was a poor risk for procedure.

District court ruled for plaintiffs

The defendant appealed

What did the appeals court determine?

Lack of Consent Riser v. American Medical Intern, Inc., cont’d

The Court of Appeals held that there was a breach in the standard of care by subjecting the patient to a procedure that would have no practical benefit to the patient.

The physician had failed to obtain informed consent from the patient.

Information to Be Disclosed

Physicians should provide as much information about treatment options as is necessary.

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

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

Individual responsible for obtaining consent must weigh importance of giving full disclosure to the patient against the likelihood that such disclosure will adversely affect the patient’s decision.

Information to Be Disclosed, cont’d

Courts generally utilize an “objective” or “subjective” test to determine whether a patient would have refused treatment if the physician had provided adequate information as to the risks, benefits, and alternatives of the procedure.

Hospitals Informed Consent

Hospitals generally do not have an independent duty to obtain informed consent.

Caveat: Cases where hospitals have been found to owe a duty to provide patients with informed consent.

For example: CT scan involves injection of a contrast dye. Keel was given no information concerning risks attendant to the procedure. The dye was injected and the plaintiff developed a thrombophlebitis at the site of the injection.

Hospitals Informed Consent, cont’d

The Kentucky Supreme Court held that expert testimony was not required to establish lack of informed consent and that the hospital had a duty to inform the patient of the risks associated with the procedure.

Keel v. St. Elizabeth Medical Center, Ky.

Hospitals Life or Death: Right to Choose

Jehovah’s Witness, in Stamford Hospital v. Nelly E. Vega, executed a release requesting that no blood or its derivatives be administered during her hospitalization.

Hospital filed a complaint requesting the court issue an injunction.

Connecticut Supreme Court determined hospital had no common law right or obligation to thrust unwanted medical care on a patient.

Nurses Informed Consent

A nurse generally has no duty to

Advise a patient as to a procedure to be employed

A nurse may confirm with the patient that the physician has explained the procedure.

Obtain a patient’s informed consent

Policy and procedures may provide that the nurse may witness that the risks, benefits, and alternatives have been explained.

Validity of Consent

Subjective test

Must determine if the individual patient would have chosen the procedure if fully informed.

Objective test

Must show that a reasonable person would not have undergone a procedure if properly informed.

Objective Test Preferred

Assessing Decision-Making Capacity

Includes patient’s ability to

Understand risks, benefits, and alternatives of a proposed test or procedure

Evaluate information provided by the physician

Express his or her treatment preferences

Voluntarily make decisions regarding his or her treatment plan

Without undue influence by family, friends, or medical personnel

Admission Consent Forms

Signed at the Time of Admission

For routine services

Limited Power of Attorney

School officials when other options lacking

Consent for Specific Procedures

Variety of consent forms

Specifically describe the risks, benefits, & alternatives of particular procedures

anesthesia

cardiac catheterization

surgery

radiation & chemotherapy therapy

blood and blood by-products, etc.

Limited Power of Attorney

Authorizes, e.g.,

School officials, teachers, & camp counselors act on the parents’ or legal guardian’s behalf

When seeking emergency care.

Limited protection

Active ongoing contact of family necessary

Who May Consent

Competent Patients

Guardianship

Parental Consent

Emancipated Minor

Incompetent Patients

When there is doubt as to a patient’s capacity to consent, the consent of the legal guardian or next of kin should be obtained.

Ability to consent is a question of fact.

Physicians are in the best position to make that determination.

Spousal consent.

Right to Refuse Treatment & Religious Beliefs

Patients have a right to refuse treatment.

Must be conscious and mentally competent

Hospitals must honor a patient’s decisions when treatment is refused.

Religious beliefs

Blood or blood products

Exculpatory Agreements

An agreement that relieves one from liability when he or she has acted in good faith.

Exculpatory agreements in the medical setting are generally considered invalid.

Case: Cudnik v. William Beaumont Hospital

Release Form

A patient’s refusal to consent to treatment, for any reason, religious or otherwise, should be noted in the medical record, and a release form should be executed.

A completed release provides documented evidence of a patient’s refusal to consent to a recommended treatment.

Proving Lack of Consent

Reasonably prudent person in patient’s position would not have undergone treatment if fully informed.

Lack of informed consent is proximate cause of injury for which recovery is sought.

Informed Consent Claims and Defenses

Risk not disclosed is commonly known.

Patient assured the practitioner that he or she would undergo treatment regardless of the risk.

For example: Patient did not want to know about the risks.

Consent was not reasonably possible.

Practitioner reasonably believed manner & extent of disclosure could reasonably be expected to adversely & substantially affect patient’s condition.

Patient Rights

Know One’s Rights

Patient’s Bill of Rights

Explanation of Rights

Know Caregivers

Ask Questions

Patient Rights, cont’d

Admission

Discrimination Prohibited

Government Facilities

Assessments and Reassessments

Participate in Care Decisions

Informed Consent

Patient Rights, cont’d

Right to Treatment

Refuse Treatment

Pain Management

Quality Care

Appoint a Surrogate Decision Maker

Patient Rights, cont’d

Have Special Needs Addressed

Execute Advance Directives

Compassionate Care

Confidentiality

Patient Rights, cont’d

Privacy and HIPAA

Disclosures Permitted without Patient Authorization

Limitations on Disclosures

Patient Advocate

Ethics Consultation

Chaplaincy Services

Patient Rights, cont’d

Discharge Orders

News: Don't Leave the Hospital Until You Know What Comes Next

Discharge or Detainment

Release from Hospital Contraindicated Transfer

Failure to Override Physician’s Discharge Order

Patient Rights, cont’d

Transfer

Access Medical Records

Know Hospital’s Adverse Events

Know Third-Party Relationships

Patient Education

Patient Rights, cont’d

Transparency & Hospital Charges

Failure to Disclose Insurance Applicants’ HIV Status

Transparency Not So Transparent

Patient Responsibilities

Patient Responsibilities Historical Perspective

Cornwall General Hospital’s Rules for Patients (posted in 1897)

1. Patients on admission to the Hospital must have a bath, unless orders to the contrary are given by the Attending Medical Attendant . . .

6. Patients must be quiet and exemplary in their behaviour and conform strictly to the rules and regulations of the Hospital, and carry out all orders and prescriptions of the various officers of the establishment . . .

Patient Responsibilities Historical Perspective, cont’d

8. No male patient shall, under any pretense whatever, enter the apartments or wards for the females, nor shall a female patient enter the apartments or wards for males, without express orders from the Medical Attendant or Lady Superintendent . . .

10. Every patient shall retire to bed at 9 p.m. from First May to First November, and at 8 p.m. from November to May; and those who are able shall rise at 6 a.m. in the Summer and 7 a.m. in the Winter . . .

11. Such patients as are able, in the opinion of the physicians and surgeons, shall assist in nursing others, or in such services as the Lady Superintendent may require . . .

Patient Responsibilities Historical Perspective, cont’d

13. Patients must not take away bottles, labels or appliances when leaving the Hospital.

14. No patients shall enter into the basement story, operating theater, or any of the officers’ or attendants’ rooms, except by permission of an officer of the Hospital . . .

Patient Responsibilities Historical Perspective, cont’d

17. Any patient bringing spirituous liquors into the Hospital or the grounds, or found intoxicated, will be discharged.

18. Whenever patients misbehave or violate any of the standing rules of the Hospital, the Attending Physician may remove or discharge them, as provided by clauses 91 and 93 of Rules for Medical Staff.

Patient Responsibilities Contemporary Perspective

Practice a Healthy Lifestyle

Maintain Current Medical Records

Keep Appointments

Provide Full Disclosure of Medical History

Accurately Describe Symptoms

Patient Responsibilities Contemporary Perspective, cont’d

Responsibility to Disclose Information

Communicate Care Preferences

Stay Informed

Report Unexpected Changes in Health Status

Adhere to Agreed Upon Treatment Plan

Patient Responsibilities Contemporary Perspective, cont’d

Avoid Self-Administration of Medications

Actively Participate in Care

Comply with Hospital Policy

Respect

Understand Medicine Has Limits

Patient Responsibilities Contemporary Perspective, cont’d

Ask Questions

“What is this medication for?”

“What diet am I on?”

“Since you are going to change my dressing, did you wash your hands?”

Tips for Patients Help Prevent Medical Errors

Medications

Inform your doctors about medicine you are taking.

Bring your medicines and supplements to doctor visits.

Inform your doctor about any allergies and adverse reactions you have had to medicines.

Make sure you can read your doctor’s prescription order.