choose a position

Prompt:

Informed consent is an ethical concept that has been practiced by hospitals for nearly one hundred years. One of the earliest cases was litigated at the turn of the century. In that case a patient consented to a diagnostic procedure. However, when the physician removed a tumor during the procedure the judge hearing the case decided that the physician was liable for battery because he violated an “individual’s fundamental right to decide what is being done to his or her body.” That case (Schloendorff vs. Society of New York Hospital) set a precedent that is still used today.

After nearly one hundred years all fifty states have watched the case law and rules and litigation pertaining to informed consent and have enacted legislation governing this ethical concept in their state region. Whether a U.S. physician is liable for negligence or battery or legally adjudicated malpractice is determined by whether the physician has obtained a written informed consent.  As with almost everything in law there are exceptions and those include emergencies, and persons who are adjudicated mentally incompetent or physically incapacitated. As stated in the laws for each state there are several common elements required for full disclosure. The elements have been born out long protracted fights and discussions hammered out in state legislatures across this diverse country. Several special interest groups as well as the AMA and a few quality assurance organizations have agreed on the basic features or common elements of informed consents.(see Table 1) The second table lists the elements according to Federal Code (Title 42 C.F.R. Sec 482.51 (b) (2)) Interpretive Guideline A-0392

(Table 1) Base elements of normal inform consent

The physician (not a delegated representative) should disclose and discuss:

aThe diagnosis, if known

bThe nature and purpose of the proposed treatment and procedure

cThe risks and benefits of the proposed treatment or procedure

dAlternatives (regardless of costs or extent covered by insurance)

eThe risks and benefits of alternatives

fThe risks and benefits of not receiving treatments or undergoing procedures

Source: AMA 1998

(Table2) What’s needed on the informed consent form

1Name and signature of the patient or appropriate, legal representative

2Name of the hospital

3Name of the procedure(s)

4Name of all practitioners performing the procedure and individual significant tasks if more than one practitioner

5Risks

6Benefits

7Alternative procedures and treatments and their risks

8Date and time consent was obtained

9Signature of the person witnessing the consent

10Name and signature of person who explained the procedure to the patient or guardian

Source: Federal Code (Title 42 C.F.R. Sec. 482.51 (b) (2)) Interpretive Guideline A-0392

In the case below you are an attorney for Steptoe and Johnson; one of the biggest and most prestigious law firms in the nation. You will explain in great detail to the partners why the firm should take this case revolving around informed consent. You must take a side whether the firm should represent the family in this case. They are threatening to sue Johns Hopkins Hospital in Baltimore, considered by many to be the nation’s top hospital. The hospital has its own in house attorneys but has retained the legal services of White and Case another law firm with the same stature as Steptoe and Johnson.

Case Study:

Two Chinese foreign exchange students came to Baltimore, Maryland to study at Johns Hopkins hospital, the nation’s number one hospital. The students were in the Master of Public Health program which by the latest U.S. News and World Report was the nation’s number one MPH program. In the first year of learning the two students got married and had a child. During the second year of their study they took their baby to Johns Hopkins hospital to have his tonsils removed.

While in the surgery unit the day before the surgery the head nurse talked with the parents about risks, benefits and alternatives to the surgery specifically to obtain an informed consent from the parents. The surgery was scheduled for the next day. However, the surgeon was sick the next day and could not perform the surgery. The chief resident was called in to do the surgery on the baby.

It was a coincidence that on that day the Chief Medical Officer of a hospital in China was present at the hospital to establish a student exchange program with the Chinese government and insisted on observing the surgery on the child, as the child was his grandson. Not wanting to cause an international incident the hospital agreed to allow the Chief Medical Officer to observe the operation from inside the operating room.

The baby later developed complications from the surgery that left the baby unable to talk for more than three years. The students are back in China and are high officials in the Chinese government. They have decided to sue.

Remember, you must take a side whether the firm should represent the family in this case. 

Please choose a position and post a 500 (or more) word discussion post outlining your position. Make sure to consider all sides of the prompt. This is worth 30 points. Then post two 250 word (or more) professional response to the posts of your peers.  Each response (up to two) is worth 10 points. Research literature should be appropriately synthesized into all three of your posts.

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Sources must be from scholarly articles sources