Please complete the following REVIEW QUESTIONS

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CHAPTER 14

Patient Consent

Learning Objectives

Discuss the differences among verbal, written, and implied consent.

Describe the role of the patient, physician, nurse, and 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.

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 (1 of 2)

Legal doctrine whereby a patient has a right to know potential risks, benefits, and alternatives of a proposed procedure

Patient has absolute right to know about and 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 (2 of 2)

Verbal consent

Binding as written consent

More difficult to prove

Written consent

Visible proof of a patient’s wishes

Implied consent

Elements of Informed Consent (1 of 2)

Nature of patient’s illness or injury

Procedure or treatment consented to

Purpose of proposed treatment

Risks and probable consequences of the proposed treatment

Probability proposed treatment will be successful

Elements of Informed Consent (2 of 2)

Alternative methods of treatment, plus their risks and benefits

Risks and prognosis if no treatment is rendered

Patient understands nature of proposed treatment, alternatives, risks, and probable consequences of treatment

Signatures of patient, physician, and witnesses

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 allows emergency care.

Eliminates 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.

Obtain second 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 and training.

Physicians: Informed Consent

Physicians are expected to disclose to patients risks, benefits, and 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 and 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

Courts require physicians to reveal to their patients information that skilled physicians of good standing would provide under the same or similar circumstances.

Lack of consent

Riser v. American Medical Intern, Inc.

Course of Treatment Case: Patient’s Decision (1 of 2)

Elderly woman living alone fell and fractured her hip.

Orthopedic surgeon ordered bed rest.

Plaintiff maintained independent style of living.

Expert testimony stated that bed rest was inappropriate treatment.

Patient was successful in proving that she was not informed of alternative treatment.

Course of Treatment Case: Patient’s Decision (2 of 2)

Court held that it was “necessary to advise a patient when considering alternative courses of treatment.”

Physician should have explained alternatives.

Risks and likely outcomes of alternatives

Matthies v. Mastromonaco

Lack of Consent: Riser v. American Medical Intern, Inc. (1 of 3)

Patient had multiple medical diagnoses.

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

Hospital could not accommodate physician’s request and 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 and was returned to St. Jude.

Lack of Consent: Riser v. American Medical Intern, Inc. (2 of 3)

Patient’s condition deteriorated, and the patient 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. (2 of 3)

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.

Lack of Consent: Riser v. American Medical Intern, Inc. (1 of 3)

Lack of Consent: Riser v. American Medical Intern, Inc. (3 of 3)

Information to Be Disclosed (1 of 2)

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 and the 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 (2 of 2)

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 (1 of 3)

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

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.

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: Informed Consent (1 of 3)

Hospitals: Informed Consent (2 of 3)

Hospitals: Informed Consent (3 of 3)

A 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, and alternatives of particular procedures

Anesthesia

Cardiac catheterization

Surgery

Radiation and chemotherapy therapy

Blood and blood by-products, etc.

Limited Power of Attorney

Authorizes, for example, school officials, teachers, and 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 minors

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 and 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.

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.

Example: Patient did not want to know about the risks.

Consent was not reasonably possible.

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

Review Questions (1 of 2)

Differentiate among verbal, written, and implied consent.

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

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

Review Questions (2 of 2)

Explain the available defenses for defendants as it relates to informed consent.

Can a patient consent to a procedure and then withdraw it? Discuss your answer.

Please complete the following REVIEW QUESTIONS

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