Patients

5 The Physician–Patient Relationship

Learning Objectives

After completing this chapter, you will be able to:

· 1. Define the key terms.

· 2. Describe the rights a physician has when practicing medicine and when accepting a patient.

· 3. Discuss the nine principles of medical ethics as designated by the American Medical Association (AMA).

· 4. Summarize “A Patient’s Bill of Rights.”

· 5. Understand standard of care and how it is applied to the practice of medicine.

· 6. Discuss three patient self-determination acts.

· 7. Describe the difference between implied consent and informed consent.

Key Terms

Abandonment

Acquired immune deficiency syndrome (AIDS)

Advance directive

Against medical advice (AMA)

Agent

Consent

Do not resuscitate (DNR)

Durable power of attorney

Human immunodeficiency

virus (HIV)

Implied consent

Informed (or expressed)

consent

Incompetent patient

In loco parentis

Living will

Minor

Noncompliant patient

Parens patriae authority

Privileged communication

Prognosis

Proxy

Uniform Anatomical Gift Act

THE CASE OF DAVID Z. AND AMYOTROPHIC LATERAL SCLEROSIS (ALS)

David, who has suffered with ALS for 20 years, is now hospitalized in a private religious hospital on a respirator. He spoke with his physician before he became incapacitated and asked that he be allowed to die if the suffering became too much for him. The physician agreed that, while he would not give David any drugs to assist a suicide, he would discontinue David’s respirator if asked to do so. David has now indicated through a prearranged code of blinking eye movements that he wants the respirator discontinued. David had signed his living will before he became ill, indicating that he did not want extraordinary means keeping him alive.

The nursing staff has alerted the hospital administrator about the impending discontinuation of the respirator. The administrator tells the physician that this is against the hospital’s policy. She states that once a patient is placed on a respirator, the family must seek a court order to have him or her removed from this type of life support. In addition, it is against hospital policy to have any staff members present during such a procedure. After consulting with the family, the physician orders an ambulance to transport the patient back to his home, where the physician discontinues the life support.

· 1. What were the primary concerns of the hospital?

· 2. What was the physician’s primary concern?

· 3. When should the discussion about the patient’s future plans have taken place with the hospital administrator?

Introduction

Few topics are as important as the physician–patient relationship. This relationship impacts the entire healthcare team. All healthcare professionals who interact with the patient must understand their responsibilities to both the patient and the physician. The patient’s right to confidentiality must always be paramount.

The first physicians were “medicine men,” witch doctors, or sorcerers. The physician–patient relationship has come a long way from those early years. In order for the relationship to exist, both physician and patient must agree to form a contract for services. Once a doctor has agreed to treat a patient, the patient can expect that the doctor will provide medical services for as long as necessary ( Figure 5.1 ). In order to receive proper treatment, the patient must confide truthfully in the physician. Failure to do so may result in serious consequences for the patient, and the physician is not liable if the patient has withheld critical information. Medical personnel who work closely with physicians, such as nurses, physician assistants, and medical assistants, must keep in mind that the physician–patient relationship is one to be closely guarded by them also. Any patient information that is either overheard or read is always to be considered confidential.

PHYSICIAN’S RIGHTS

Physicians have the right to select the patients they wish to treat. They also have the right to refuse service to patients. From an ethical standpoint, most physicians treat patients who need their skills. This is particularly true in cases of emergency.

Physicians may also state the type of services they will provide, the hours their offices will be open, and where they will be located. The physician has the right to expect payment for all treatment provided, and a physician can withdraw from a relationship if the patient is noncooperative or refuses to pay bills when able to do so.

Physicians have the right to take vacations and time off from their practice and to be unavailable to care for their patients during those times. It is legally prudent for physicians to arrange for coverage during an absence. In most cases, other physicians will cover for them and take care of their patients. Physicians should notify their patients when they will be unavailable.

Figure 5.1 The Physician–Patient Relationship

Some physicians now charge for services such as answering after-hours phone calls and filling out insurance forms. Many physicians feel that the large increases in their malpractice insurance premiums and the tighter regulations by HMOs have forced them to charge for services that they previously performed without charge.

PHYSICIAN’S RESPONSIBILITIES

Clearly, a physician’s first responsibility is to be professionally competent. In addition, a physician must treat all patients with the same standards regardless of race, gender, sexual orientation, or religion. While a physician has the right to accept or decline to establish a professional relationship with any person, once that relationship is established, the physician has certain responsibilities. For example, federal law and many state laws prohibit hospitals from giving physicians “kickbacks” of money or other benefits in return for referring patients. In 1994, NME Psychiatric Hospitals pleaded guilty to making unlawful payments to physicians in order to induce them to refer patients to their institutions. NME agreed to pay the federal government $379 million to settle the case (United States v. NME Psychiatric Hosps., Inc., No. 94-0268).

The physician has many other responsibilities, including ethical ones. The American Medical Association (AMA) has taken a leadership role in setting ethical standards for the behavior of physicians. The AMA, organized in 1846, formed its first code of ethics in 1847. Table 5.1 presents the AMA’s current statement of principles in its entirety.

TABLE 5.1 AMA Principles of Medical Ethics

Preamble The medical profession has long subscribed to a body of ethical statements developed primarily for the benefit of the patient. As a member of this profession, a physician must recognize responsibility not only to patients, but also to society, to other health professionals, and to self. The following principles adopted by the American Medical Association are not law, but standards of conduct which define the essentials of honorable behavior for the physician. Human Dignity I. A physician shall be dedicated to providing competent medical service with compassion and respect for human dignity. Honesty II. A physician shall deal honestly with patients and colleagues, and strive to expose those physicians deficient in character or competence, or who engage in fraud or deception. Responsibility to Society III. A physician shall respect the law and recognize a responsibility to seek changes in those requirements that are contrary to the best interests of the patient. Confidentiality IV. A physician shall respect the rights of patients, of colleagues, and of other health professionals, and shall safeguard patient confidence within the constraints of the law. Continued Study V. A physician shall continue to study, apply, and advance scientific knowledge, make relevant information available to patients, colleagues, and the public, obtain consultation, and use the talents of other health professionals as needed. Freedom of Choice VI. A physician shall, in the provision of appropriate health care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide service. Responsibility to Improved Community VII. A physician shall recognize a responsibility to participate in activities contributing to an improved community and the betterment of public health. Responsibility to Patient VIII. A physician shall recognize that responsibility to the patient is paramount. Patient Access to Medical Care IX. A physician must support access to medical care for all people.

Source: American Medical Association, Code of Medical Ethics © 2008 – 2009 .

PROFESSIONAL PRACTICE RESPONSIBILITIES

Medical practice responsibilities include such commonplace routines as effective hand-washing techniques before touching any patient. While this may seem to be an issue that hardly needs to be stated, nevertheless, there are serious ethical, legal, and economic implications when healthcare personnel ignore these sensible routines. For example, a survey of over 900 hospitals, cited in the Chicago Tribune, reports that medical mistakes kill anywhere from 44,000 to 98,000 Americans every year. According to the report, many often-preventable complications, such as postoperative infections, lead to more than 32,000 hospital deaths and more than $9 billion in extra costs annually. One of the most serious complications is postsurgery sepsis (bloodstream infections). Researchers believe that improved hand washing might reduce these high rates of death.

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Failure to practice correct hand washing is considered to be a medical error when it results in patient infection. All healthcare professionals must hold themselves to the same high standards regarding diligent hand washing that we set for physicians. Physicians have many duties upon entering the practice of medicine. Examples of professional duties are described in Table 5.2 .■

TABLE 5.2 Examples of Physicians’ Duties

Conflict of interest	Physicians should not place their own financial interests above the patient’s welfare.
Professional courtesy	Historically, there is an unwritten practice among many physicians that they would not charge each other for professional services. However, this practice has lost favor because many physicians are concerned about the lack of documentation when seeing a fellow physician free of charge.
Reporting unethical conduct of other physicians	A physician should report any unethical conduct by other physicians.
Second opinions	Physicians should recommend that patients seek a second opinion whenever necessary.
Sexual conduct	It is unethical for the physician to engage in sexual conduct with a patient during the physician–patient relationship.
Treating family members an emergency.	Physicians should not treat members of their families except in an emergency.

Duties During a Medical Emergency

A physician cannot ethically or legally turn away a patient who is in an emergency situation. If the physician is unable to adequately treat the patient, then he or she must call for emergency assistance from paramedics (a 911 call). For instance, allergy specialists may be unable to give life-saving medications to a stroke victim, because the drugs won’t be available in their offices. However, allergy specialists can handle victims who are in respiratory distress as well as, or better than, some other medical specialists. It is especially important to remember that patients cannot be turned away from a hospital or physician’s office if they are indigent or uninsured.

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Remember that all physicians receive the same basic medical training regardless of their medical specialty. They and their staff should be able to assist with basic cardiopulmonary resuscitation (CPR).

Duty to Treat Indigent Patients

In U.S. hospitals, there has been, in the past, a “dumping crisis” of indigent patients who lack medical insurance. There are many stories of deaths occurring after a patient has been shuffled from a private hospital emergency room to a public hospital that accepts indigent patients. While the hospital treatment may not be to blame for the death, the long delay in treatment while the patient is being transferred might. The Comprehensive Omnibus Budget Reconciliation Act (COBRA) contains an amendment (EMTALA) that prohibits “dumping” patients from one facility to another. It is now a federal offense to do this. (See EMTALA discussed further in Chapter 8 .) This amendment does not mandate treatment, but it does require a hospital to stabilize a patient during an emergency situation.

Does a physician have a duty to treat a patient who is unable to pay? According to the Summary of Opinions of the Council on Ethical and Judicial Affairs of the AMA ( 2008 – 2009 ), a physician has the right to select which patients to treat. However, physicians do not have the same freedom to drop patients once they have agreed to treat them. The healthcare professional has the right to earn a living and charge for services, but from an ethical standpoint, a physician cannot abandon any patient, even in a nonemergency situation. Abandonment might expose the patient to dangers due to lack of oversight of medications and treatment.

Duty Not to Abandon a Patient

Once a physician has agreed to take care of a patient, this is considered to be a contract that may not be terminated improperly. Physicians may be charged with abandonment of the patient if they do not give formal notice of withdrawal from the case. In addition, the physician must allow the patient sufficient time to seek the service of another physician. This does not mean the physician may never withdraw from a case. Physicians may decide they can no longer accept responsibility for the medical treatment of a patient because the patient refuses to come in for periodic checkups or take prescribed medications and treatments. They may even offer referral suggestions. Abandonment could occur if the physician does not give enough notice to the patient so that other arrangements for medical care can be made.

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There are occasions, such as during vacations, when a physician will ask another physician to “cover” or take charge of his or her patients. This is not considered to be abandonment.

Abandonment is considered to be a civil wrong or tort. It can be considered to be a breach of contract and even negligence. The courts have found the physician–patient relationship to be that of a contract when they enter into a mutual agreement. The physician agrees to diagnose and treat the patient until the relationship is over. The patient agrees to pay the physician for these services. If the physician, who has already agreed to this mutual contract, does not allow the patient to make an appointment for treatment, then abandonment may exist.

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Office receptionists and nurses need to use care when denying patients an appointment. In some cases, office personnel believe they are serving the best interests of the physician by not overloading his or her schedule, but they may be setting up the physician for a charge of abandonment.

Abandonment with negligence occurs when the physician terminates the relationship in an unreasonable way as compared to the way other physicians would act in the same circumstances. For example, if a physician refused to see a patient for follow-up care after a surgical procedure because the patient or the patient’s insurance company did not pay the bill, the physician could be liable for damages due to negligence and abandonment.

It is a frustration for physicians when patients do not comply with the treatment plan. Patients can also be frustrated when they do not experience a cure from a physician. The patient may then terminate the physician–patient relationship by not making any more appointments to see the physician. However, physicians and their office staffs must be vigilant about maintaining the relationship until it is terminated in a formal manner such as a letter sent by certified mail.

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Sending a letter by certified mail is the best method physicians can use to protect themselves from a charge of abandonment when they have to sever a relationship with a patient.

Abandonment does not apply just to the physician–patient relationship. Licensed healthcare providers, such as dentists, podiatrists, physician assistants, and nurse practitioners, are all subject to this principle. There are difficult situations relating to abandonment that arise when medical personnel have started to provide emergency care such as CPR. For example, once emergency medical technicians (EMTs) have started to give treatment, they may not stop until someone else takes over for them or the patient expires. In fact, all persons who administer CPR are taught to continue to provide this procedure until someone else relieves them or they cannot perform CPR any longer.

Hospitals are also liable for abandonment, especially in emergency situations. In some cases, an emergency patient may have to be transferred to another hospital that can better handle his or her care, such as one having a burn unit. However, an emergency patient must be stabilized, usually with intravenous medications, before being transferred to other facilities.

The Noncompliant and Incompetent Patient

A noncompliant patient is one who fails, or refuses, to cooperate with the recommendations of a healthcare professional. This person may refuse to take prescribed medications, or carry out a portion of their medical plan that is under their control.

An incompetent patient is one who is determined to be unable to provide for his or her own needs and protection. This status must be provided by a court of law.

A patient who is noncompliant and also incompetent presents a special concern for physicians and hospitals. Hospitalized patients who are noncompliant may discharge themselves against medical advice of their physicians, but the incompetent patient poses a unique problem because he or she may not be able to understand the need for treatment and may even pose a threat to another person. In this case, a physician will submit an emergency application to a judge, who can then order an emergency hospital admission for the patient. Most states require that within 72 hours a formal (due process) hearing be held. At this hearing, the patient’s medical condition is evaluated along with the loss of any of his or her rights. A decision may be made to either allow the patient to return home or to continue to be hospitalized. Additional hearings are held as long as the incompetent patient is hospitalized.

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Note that abbreviations used for the American Medical Association (AMA) and Against Medical Advice (AMA) are the same. Be careful not to confuse the two.

Duty to Treat Patients with AIDS

Acquired immunodeficiency syndrome (AIDS) is a disease resulting in infections that occur as a result of exposure to the human immunodeficiency virus (HIV) , which causes the immune system to break down. Testing for HIV is useful, since medications are available that can slow or even stop the advancement of the disease. Because there is a strong stigma attached to this disease, it is important to respect the confidentiality of anyone having an HIV or AIDS test. Patients must give their informed consent for the test.

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Note that testing positive for HIV does not necessarily mean that a person has, or will develop, AIDS. Positive test results, if leaked to an employer, can lead to loss of job, on-the-job harassment, or other serious consequences, even though such actions may be illegal.

Ethical Considerations When Treating AIDS Patients

A physician who knows that the patient may endanger the health of others has certain ethical obligations, which include the following:

· 1. Persuading the patient to inform his or her partner(s).

· 2. Notifying authorities if there is a suspicion that the patient will not inform others.

· 3. As a last resort, notifying the patient’s partner(s).

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As with all legal/ethical issues, when in doubt about a notification obligation, it is wise to check the laws in your state regarding the requirement and/or consult an attorney. Many states require only the information about a new case of AIDS and not the name of the infected person.

It is unethical to refuse to treat, work with, or provide housing for a person who is HIV- or AIDS-infected. In addition, the Americans with Disabilities Act (ADA), a federal law, protects HIV and AIDS patients from discrimination.

Physicians have faced the dilemma of honoring the confidentiality of their patients and then risking being sued for failure to warn or protect third parties who may have been exposed to HIV/AIDS through the activity of the patient. This is of particular concern when the patient is a child. The child may be shunned by friends or others who are afraid of being exposed to the virus. In Doe v. Borough of Barrington, the court cited the plaintiffs’ brief for numerous examples of hysteria caused as a result of AIDS. These included a Florida family with hemophiliac children, who tested positive for AIDS, driven out of town after their house was firebombed; a teacher with AIDS who was removed from teaching duties; and children with AIDS who were denied schooling in Colorado (Doe v. Borough of Barrington, 729 F. Supp. 376, N.J. 1990). The physician, by law, must make a full report to the state about any patient who is HIV- or AIDS-positive, despite the potentially serious consequences to the patient by reporting the case.

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Patients with AIDS, or who are HIV-positive, need to be treated with the same compassion and care that would be given to any patient with a life-threatening illness.

Exposure of Healthcare Workers to a Patient’s Blood

Unfortunately, needlestick injuries in healthcare settings are common even when physician and healthcare workers take special precautions, such as using gloves. After exposure to an HIV-positive patient’s blood, a physician or healthcare worker has a 0.3 percent risk of contracting HIV, according to the CDC estimates. In one study of medical school residents, it was found that almost 70 percent reported they had received a needlestick injury during their medical training. Understandably, healthcare workers who have received needlestick injuries wish to know if the patient’s blood contained the HIV or AIDS virus.

If the patient refuses to be tested for HIV or AIDS, can the physician order blood work to test for the virus without the patient’s consent? This presents both legal and ethical concerns. HIV testing without the patient’s consent is illegal. However, some states have allowed HIV testing without the patient’s consent when a serious situation warrants the testing. From an ethical standpoint, HIV testing in spite of the patient’s objection violates the patient’s autonomy and privacy.

Restriction on HIV-Infected Healthcare Workers

Public health concerns about HIV-infected healthcare employees has always been an issue. Several ethical questions have been presented:

· Should healthcare workers, especially those who perform invasive procedures such as drawing blood specimens, be tested for HIV?

· Should HIV-infected healthcare workers inform their patients that they are positive for the virus?

· Should the practice of HIV-infected workers be restricted?

As patients/consumers, it is relatively easy for us to answer yes to these three questions. For example, physicians have an ethical obligation that requires that they do no harm to their patients. Further, physicians are obligated to disclose information to their patients that a reasonable person would require in order to make an informed decision about their own testing for the virus. Most patients would certainly want to know if their physician or healthcare worker is infected with HIV. A Newsweek poll found that 94 percent of their readers responding to the poll agreed that all physicians and dentists should be required to tell their patients if they are HIV-infected.

The American Medical Association recommends that HIV-positive healthcare workers should not perform invasive procedures that pose a risk to their patients and that physicians should always “err on the side of protecting patients.” The American Academy of Orthopedic Surgeons recommends that HIV-positive surgeons not perform procedures that involve the placement of internal devices, such as hip replacements, wires, or even blind probing of tissue. Probably the strongest statements come from the Federation of State Medical Boards, which states that it would be professional misconduct for healthcare workers to perform invasive procedures if they do not know their HIV-status. Furthermore, the Federation recommends that all state boards require that the names of HIV-infected healthcare workers be reported to them.

There are strong arguments for ignoring confidentiality issues and reporting HIV-positive workers if their actions put patients’ health at risk. For example, surgeons, gynecologists, dentists, phlebotomists, surgical nurses, and emergency medical technicians all take part in invasive procedures in which HIV could be transmitted. In addition, removing the HIV-positive healthcare worker from close patient contact could ultimately provide protection from patients’ infections and diseases such as tuberculosis.

There are valid arguments against requiring mandatory testing and restricting the activities of HIV-positive healthcare workers. For example, healthcare workers have a right to freedom from discrimination and to privacy. There are statistics that show that the risk of transmitting the HIV to another person is very low. In addition, the cost of testing all healthcare workers for HIV is prohibitive. The CDC has estimated that it would cost more than $250 million for testing alone. This money would have to be diverted from research and other programs. The CDC guidelines also declare that healthcare workers have no ethical duty to disclose their HIV status if they present no significant risk to their patients.

On-the-Job Protection for the Healthcare Worker

There is a relatively low risk of infection for persons working in the fields of medical transcription, secretarial, or office management in which there is little patient contact. There is a greater risk of infection for healthcare professionals, such as a physician, nurse, or medical assistant, as they have direct patient contact. The bottom line for all healthcare organizations is that there should be a clearly stated policy on how to handle all needlestick situations ( Figure 5.2 ) and patients’ bodily fluids.

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Medical offices, clinics, and hospitals should have special absorbent cleaning material available in case of a blood spill. Directions on what to do when a blood spill or other accident occurs should be placed where they are visible by the entire staff.

Duty to Properly Identify Patients

Many medical errors occur because the patient was not properly identified. It is necessary to identify the patient both by stating his or her name and examining any other identification such as a medical wristband. It’s always wise to ask patients to identify themselves by name. Patients who are hard of hearing, suffering from Alzheimer’s disease, non-English-speaking, or elderly may not understand when you call them by name. There have been cases of incorrect patients in the emergency room (ER) waiting area going in for treatment because they didn’t properly hear their name called. It’s always wise to ask to examine some identification, such as a driver’s license or medical wristband. Some medical offices take the patient’s photo for their records.

Figure 5.2 Needlestick Protection

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Remember, if an error is made, such as not properly identifying the correct patient, admit it immediately. Then seek to correct the situation. You may save a life.

Duty to Respect Confidentiality

Medical personnel should use a low voice when speaking to patients over the telephone or speaking about patients to other staff members within hearing distance of any patients in the waiting room. Ideally, a glass enclosure should be present at the front desk in all waiting rooms to separate the receptionist from the patients and provide an additional aid for patient confidentiality. The sign-in sheet or patient register should be designed so those patients who are signing in or registering cannot view other patients’ names.

Duty to Tell the Truth

There has always been the dilemma in medicine about whether to tell dying patients the truth about their prognosis (prediction for the course of their disease). On the one hand, the truth can be a means for patients to have a sense of control and even empowerment over their remaining time. On the other hand, the truth can act as a traumatic and demoralizing event that may cause the patient to lose the will to live.

There has been a major change in physicians’ attitudes concerning truth telling during the past several decades. Originally, many physicians believed in a paternalistic, or protective, approach in which they avoided upsetting their terminally ill patients by telling them the truth about their condition. In a research study conducted in 1961, Donald Oken reported that 88 percent of U.S. physicians surveyed said it was their policy not to tell their patients if they had a terminal malignancy. The physicians believed it would be too upsetting to the patient. In a follow-up study 20 years later, these findings were completely reversed, with 98 percent of the physicians surveyed following a policy of telling the truth to patients. This position of truth telling has continued to the present day. The openness for cancer patients came about, in part, due to the necessity to seek consent for chemotherapy and radiation therapy.

Is this change in honesty for the benefit of the patient? Should physicians inform their Alzheimer’s patients if their families want the information withheld? Should elderly patients be lied to when they have to move into a nursing home? Should family members be misled over the phone when called to come into a hospital after a family member has expired? These difficult questions have caused many healthcare professionals to reexamine the truth-telling issue.

For example, a medical ethicist, Joseph Fletcher, states that maintaining the lie of a diagnosis becomes very difficult for everybody on the healthcare team. He believes in focusing on the consequences of an action while protecting the patient. Furthermore, according to Fletcher, medicine has now become too complex to keep secrets from patients. He states that in the long run it is better for the patient if the truth is told.

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The physician is the person responsible for discussion of the diagnosis with the patient. There are various interpretations of what constitutes lying. However, most people believe that a lie is a falsehood told in those circumstances in which the other person has a reasonable expectation of the truth.

False results of research studies also have had a negative impact upon patients. For example, a Canadian physician working with researchers at a major U.S. medical school reported fictitious results about a mastectomy study. The researchers falsely claimed, and advised the medical community, that the “less radical” surgical procedure (something other than a mastectomy) was an effective treatment for cancer of the breast. This deception took place over a 15-year period until finally they retracted their false claims.

Many believe that when dealing with the issue of truth telling, one should apply principles of justice. In other words, try to determine what a “just” action would be for the patient. Thomas Hackett, in writing about psychological assistance for the dying patient, cites an example of a typical victim in which there was a failure to inform:

· A woman with terminal breast cancer asked her doctor why her headaches persisted. When the doctor said it was probably nerves, she asked why she was nervous. He returned the question. She replied, “I am nervous because all the tests have stopped, nobody wants my blood, and I get all the pills I want. The priest comes to see me twice a week, which he never did before, and my mother-in-law is nicer to me even though I am meaner to her. Wouldn’t this make you nervous?” There was a pause. Then the doctor said, “You mean you think you are dying?” She said, “I do.” He replied, “You are.” Then she smiled and said, “Well, I broke the sound barrier; someone finally told me the truth.”

In some circumstances, truth telling is at variance with the medical profession’s obligation of confidentiality. For example, in the famous Tarasoff case, the court held that a psychiatrist should have warned Tatiana Tarasoff that one of his patients was threatening to kill her. The patient did fulfill his threat to kill Tatiana Tarasoff. The court stated that the therapist was under an obligation to take reasonable steps, such as breaching confidentiality, to protect all third parties from the ill patient (Tarasoff v. Regents of the University of California, 17 Cal. 3d 342, 1976). However, in a later case, the same California court that tried the Tarasoff case stated that the therapist did not have a duty to warn a third party of a threat, because the patient had not made threats against a particular person. While these two cases seem to be at odds with each other, the current thinking is that this later verdict is more reasonable. It is difficult, if not impossible, for a psychiatrist to determine which threats a patient makes will result in murder. In reality, however, many mental health physicians are maintaining a conservative approach by hospitalizing patients who show violent tendencies.

The American Hospital Association’s Committee on Biomedical Ethics states:

· Also subject to state law, confidentiality may be overridden when the life or safety of the patient is endangered such as when knowledgeable intervention can prevent threatened suicide or self-injury. In addition, the moral obligation to prevent substantial and foreseeable harm to an innocent third party usually is greater than the moral obligation to confidentiality.

PATIENTS’ RIGHTS

The patient has the right to approve or give consent—permission—for all treatment. In giving consent for treatment, patients reasonably expect that their physician will use the appropriate standard of care in providing care and treatment—this means that the physician will use the same skill that other physicians use in treating patients with the same ailments in the same geographic locality. (Standard of care is discussed in more detail in Chapter 3 .)

The patient’s right to privacy prohibits the presence of unauthorized persons during physical examinations or treatments. This right has long been established. In a precedent-setting 1881 case, the plaintiff, a poor woman named Mrs. Roberts, sued Dr. DeMay for bringing in a third party, by the name of Scattergood, to assist him while she was in labor. Mrs. Roberts claimed that Scattergood “indecently, wrongfully, and unlawfully” laid hands on her and assaulted her. Even though Mrs. Roberts thought Scattergood was a physician, which he was not, he was present without her permission. The court found in the plaintiff’s favor and awarded her damages for the “shame and mortification” she suffered (DeMay v. Roberts, 9 N.W. 146, Mich. 1881).

Additionally, patients have the right to be informed of the advantage and potential risks of treatment—including the risk of not having the treatment. They also have the right to refuse treatment. Some members of religious groups, such as Jehovah’s Witnesses and Christian Scientists, do not wish to receive blood transfusions or other types of medical treatment. Physicians may not treat them against their wishes. However, in the case of a minor child, the court may appoint a guardian who can give consent for the child’s procedure.

Confidentiality

Patients expect that the physician and staff will keep all information and records about their treatment confidential. In fact, the Medical Patients Rights Act provides that all patients have the right to have their personal privacy respected and their medical records handled with confidentiality. No information, test results, patient histories, or even the fact that the patient is a patient, can be transmitted to another person without the patient’s consent. A breach of confidentiality is both unethical and illegal. See Chapter 9 for a detailed discussion of confidentiality when using electronic transmission of patient’s medical information as mandated by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

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Remember that no patient information can be given over the telephone without that person’s permission.

Privileged communication refers to confidential information that has been told to a physician (or attorney) by the patient. The physician–patient relationship is considered to be a protected relationship and, as such, keeps the holder of this information from being forced to disclose it on a witness stand.

The American Hospital Association developed a published statement called “A Patient’s Bill of Rights,” which describes the physician–patient relationship (see Table 5.3 ). All healthcare professionals must follow these guidelines when working with patients.

TABLE 5.3 A Patient’s Bill of Rights

· 1. The patient has the right to considerate and respectful care. · 2. The patient has the right to and is encouraged to obtain from the physicians and other direct caregivers relevant, current, understandable information concerning diagnosis, treatment, and prognosis. · 3. The patient has the right to make decisions about the plan of care prior to and during the course of treatment and to refuse a recommended treatment or plan of care to the extent permitted by law and hospital policy and to be informed of the consequences of this action. · 4. The patient has the right to have an advance directive (such as a living will, healthcare proxy, or durable power of attorney for healthcare) concerning treatment or designating a surrogate decision maker with the expectation that the hospital will honor the intent of that directive to the extent permitted by law and hospital policy. · 5. The patient has the right to every consideration of privacy. · 6. The patient has the right to expect that all communications and records pertaining to his/her care will be treated as confidential by the hospital, except in cases such as suspected abuse and public health hazards when reporting is permitted or required by law. · 7. The patient has the right to review the records pertaining to his/her medical care and to have the information explained or interpreted as necessary, except when restricted by law. · 8. The patient has the right to expect that, within its capacity and policies, a hospital will make reasonable response to the request of a patient for appropriate and medically indicated care and service. · 9. The patient has the right to ask and be informed of the existence of business relationships among the hospital, educational institutions, other healthcare providers, or payers that may influence the patient’s treatment or care. · 10. The patient has the right to consent to or decline to participate in proposed research studies or human experimentation affecting care and treatment or requiring direct patient involvement, and to have those studies fully explained prior to consent. · 11. The patient has the right to expect reasonable continuity of care when appropriate and to be informed by physicians and other caregivers of available and realistic patient care options when hospital care is no longer appropriate. · 12. The patient has the right to be informed of hospital policies and practices that relate to patient care, treatment, and responsibilities.

Source: Reprinted with permission of the American Hospital Association, © 2008 .

Patient Self-Determination Acts (Advance Directives)

Several documents executed by the patient, called self-determination documents or advance directives, state the patient’s intentions for healthcare-related decisions and in some cases name another person as proxy to make decisions for the patient. A proxy statement is the written authorization given by a person so that a second person can act for him or her.

An advance directive is a written statement in which people state the type and amount of care they wish to receive during a terminal illness and as death approaches. These documents include living wills, durable power of attorney, and organ donation. Self-determination documents provide protection for both the patient and the physician. The patients obtain assurance that their healthcare wishes will be followed at the point in time when they are unable to express their intent, and physicians have an assurance that they are acting within the guidelines for care set by their patients. Table 5.4 contains a brief summary of advance directives.

TABLE 5.4 Advance Directives

Type	Description
Living will	Document that a person drafts before becoming incompetent or unable to make healthcare decisions.
Durable power of attorney	A legal document that empowers another person (proxy) to make healthcare decisions for an incompetent patient. It goes into effect after the person becomes incompetent and only pertains to healthcare decisions.
Uniform Anatomical Gift Act	All states have some form of this law. It allows persons 18 years or older and of sound mind to make a gift of any part of their body for purposes of medical research or transplantation.
Do not resuscitate (DNR) order	This is an order placed into a person’s medical chart or medical record. It indicates that the person does not wish to be resuscitated if breathing stops.

Living Will

A living will allows patients to set forth their intentions in advance as to their treatment and care. This document contains the patient’s desires in the case of a catastrophic situation in which he or she may be incompetent to voice wishes concerning medical treatment. A patient may request that life-sustaining treatments and artificial nutritional support, such as tube feedings, either be used or not be used to prolong life. The patient may also request that no extraordinary medical treatment, such as being placed on a respirator (ventilator), be given. In this case, the physician puts a Do not resuscitate (DNR) order in the patient’s medical chart in either the hospital or nursing home. This means that CPR cannot be used if the person’s heart and breathing stop. This living will document gives patients the legal right to direct the type of care they wish to receive when death is imminent.

Some state statutes will specifically state what conditions need to be present in order for a living will to go into effect. For example, Ohio follows the Modified Rights of the Terminally Ill Act, which states that the person must be terminally ill and/or in a state of permanent unconsciousness. The patient must be in a state that is irreversible, untreatable, and incurable with the prospect of imminent death. This type of regulation protects patients from having their living will implemented when they are briefly unconscious following surgery or a mild stroke.

Ideally, this process is discussed in the physician’s office with patients when they are capable of making the decision. Other family members or significant others can also be part of the discussion and decision process. The living will document must be signed by the patient and witnessed by another person. One copy should be kept in the patient’s record. Many patients ask their attorneys to also retain a copy. See Figure 5.3 for a sample of a living will document.

Durable Power of Attorney

The durable power of attorney , when signed by the patient, allows an agent (also called a proxy) or representative designated by the patient to act on behalf of the patient. If the durable power of attorney is for healthcare only, then the agent may only make healthcare-related decisions on behalf of the patient.

Because the power of attorney is “durable,” the agent’s authority continues even if the patient is physically or mentally incapacitated. This document is in effect until canceled by the patient. A copy of the durable power of attorney should also be kept with the patient record. Both a living will and durable power of attorney for healthcare are recommended for all people. See Figure 5.4 for a sample of a durable power of attorney for healthcare document.

Figure 5.3 Sample Living Will

Figure 5.4 Sample Power of Attorney

Uniform Anatomical Gift Act

The Uniform Anatomical Gift Act allows persons 18 years or older and of sound mind to make a gift of any or all body parts for purposes of organ transplantation or medical research. The statute includes two specific safeguards. First, a physician who is not until The Healthcare Environment involved in the transplant must determine the time of death. Second, no money is allowed to change hands for organ transplantation.

The donor carries a card that has been signed in the presence of two witnesses. In some states, the back of the driver’s license has space to indicate the desire to be an organ donor, with space for a signature.

If a person has not indicated a desire to be a donor, the family may consent on the patient’s behalf. Generally, if a member of the family opposes the donation of organs, then the physician and hospital do not insist on it, even if the patient signed for the donation to take place. See Figure 11.3 for a sample donor card.

Questions that are frequently asked about advance directives include the following:

· 1. To whom should the advance directives be given? Copies of the advance directives should be given to the personal physician, close relatives, and a close friend. In addition, a copy should be placed in the medical chart if the patient is hospitalized or in a nursing home.

· 2. Where should advance directives be stored? They should be kept with the patient’s personal papers in the home or nursing home setting. It is not recommended that they be stored in a safety deposit box, as they will not be accessible in an emergency.

· 3. How can the advance directive be changed or amended? Any revisions can be made by drawing through the outdated statement in the original document. After a revision is made, it should be dated and signed. An amended copy should be given to the personal physician, family member, and friend.

· 4. Can the advance directive be revoked? People can revoke their documents by destroying them and asking anyone holding a copy to do the same. Ideally, the request to destroy the advance directive should be sent in writing to all those who hold a copy.

· 5. What does the law say about advance directives? A federal law, the Patient Self-Determination Act (PSDA) was passed in 1991. Congress has strongly supported a person’s right to self-determination before becoming incompetent. However, a patient’s request for assisted suicide will not be honored in any states except Oregon and Washington.

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It is recommended that all persons place in writing their wishes about what type of treatment they should receive if they become incompetent. The advance directive should be specific about treatments such as CPR, tube feedings, and the use of ventilators.

RIGHTS OF MINORS

A minor is a person who has not reached the age of maturity, which in most states is 18. In most states, minors are unable to give consent for treatment, except in special cases involving pregnancy, request for birth control information, abortion, testing and treatment for sexually transmitted diseases, problems with substance abuse, and a need for psychiatric care. The courts have held that the consent of a minor to medical or surgical treatment is not sufficient. The physician must secure the consent of the parents or someone standing in for the parents ( in loco parentis ) or run the risk of liability.

In some cases the state must take over the care for minors who cannot care for themselves. The principle of parens patriae authority occurs when the state takes responsibility from the parents for the care and custody of minors under the age of 18. This principle may also occur when persons are mentally incompetent to take care of themselves. If the child is removed from his or her parents, then two rights must be protected through due process: the rights of the child and the rights of the parents. It is not a simple matter for the state to remove a child from the custody of the parents. The state must prove that the parents are neglecting the child or are not capable of caring for the child. Then a hearing must take place in juvenile court.

TABLE 5.5 Classification of Minors’ Competencies

Classification	Definition
Minor	A person under the age of 18 (termed infant under the law). The signature of a parent or legal guardian is needed for consent to perform a medical treatment in nonemergency situations.
Mature minor	A person judged to be mature enough to understand the physician’s instructions. Such a minor may seek medical care for treatment of drug or alcohol abuse, contraception, venereal disease, and pregnancy.
Emancipated minor	A person between the ages of 15 and 18 who is either married, in the military, or self-supporting and no longer lives under the care of a parent. Parental consent for medical care is not required. Proof of emancipation (for example, marriage certificate) should be included in the medical record.

Mature minors and emancipated minors are considered competent and can provide consent for other types of treatment as well. The varying degrees of minors’ competency are described in Table 5.5 .

PATIENTS’ RESPONSIBILITIES

In addition to the patients’ rights, they also have certain obligations. Patients are expected to follow their physician’s instructions. They must make follow-up appointments to monitor their treatment and medication use if requested by their physician. Patients must be absolutely honest with the physician about such issues as past medical history; family medical history; and tobacco, drug, and alcohol use. Finally, patients and parents of minor children are expected to pay the physician for medical services ( Figure 5.5 ).

Figure 5.5 A Parent or Guardian Is Responsible for a Minor’s Medical Bills

Consent

Consent is the voluntary agreement that a patient gives to a medically trained person the permission to touch, examine, and perform a treatment. The two types of consent, informed consent and implied consent, are discussed in the following section.

The Doctrine of Informed Consent

Informed (or expressed) consent means that the patient agrees to the proposed course of treatment after having been told about the possible consequences of having or not having certain procedures and treatments ( Figure 5.6 ). The patient’s signature on the consent form indicates that the patient understands the limits or risks involved in the pending treatment or surgery as explained by the physician. The goal of informed consent is to protect patients’ rights to decide for themselves about their own healthcare treatment. In addition, informed consent is meant to disclose information to the patient so that he or she can make a reasoned decision.

The physician, who is solely responsible for providing information to the patient, must carefully explain that in some cases the treatment may even make the patient’s condition worse. The Doctrine of Informed Consent requires the physician to explain the following in understandable language:

· The patient’s diagnosis, if known

· The nature and purpose of the proposed treatment or procedure

· The advantages and risks of treatment

· The alternative treatments available to the patient, regardless of their cost and whether they will likely be covered by the patient’s insurance

· Potential outcomes of the treatment

· What might occur, both risks and benefits, if treatment is refused

In addition, the physician must be honest with the patient and explain the diagnosis, the purpose of the proposed treatment, and the probability that the treatment will be successful. The purpose of this explanation is that the patient can then make a knowledgeable decision about whether to go ahead with the treatment or procedure. In an emergency situation in which the patient cannot understand the explanation or sign a consent form, the physician providing the care is protected by law.

Figure 5.6 Patient Signs a Consent Form

© Monkey Business/fotolia

According to recent studies, a few physicians have withheld options for treatment from their patients. A University of Chicago research study found that 29 percent of the 1,144 surveyed physicians would have problems referring a patient to another doctor for some legal procedures. In some cases, such as for contraceptives or end-of-life issues such as withholding chemotherapy, they had ethical problems making the referral. The advice to patients is to be aware that they may not get all the information about treatments they are legally due.

In a case in Alaska, the court determined that the physician did not fulfill his duty to disclose the risks of breast reduction surgery when he failed to warn the patient about the risk of scarring. In answer to the patient’s questions, the physician said that she shouldn’t worry and she would be happy with the results. The patient wasn’t happy, and she sued the physician and won (Korman v. Mallin, 858 P.2d 1145, Alaska 1993).

Is it difficult to know if or when the patient is fully informed? There are two standards to use to determine if the patient understands what he or she is being told. The first standard is based upon what the physician tells the patient. Many courts will use a “reasonable physician standard,” meaning that the physician must tell the patient what a “reasonable physician in the same specialty” would tell him or her under the same circumstances. This allows for a type of mass-produced consent form for many treatments and surgical procedures. However, in addition to having a patient sign this mass-produced consent form, the physician must also explain the procedure, risks, and alternatives. The second standard is “the reasonable patient standard,” which means that the patient must receive the information that other patients receive but, in addition, must be provided the opportunity to communicate questions to the physician. Healthcare professionals such as nurses and medical assistants should not replace the physician in obtaining a signed informed consent form. However, they are in an ideal situation in either the office or hospital to alert the physician when they believe that the patient is confused about the procedure.

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In many cases, patients will be more comfortable discussing their fears with a trusted caregiver rather than with their physician. These patient fears must then be conveyed to the physician, and documented on the patient chart, even if a consent form has been signed.

It is very difficult to fully inform a patient about all the things that can go wrong with a treatment. However, the physician must make a reasonable attempt to do so in order for the patient to make an informed decision about treatment.

The Canterbury decision is a classic example of two crucial components of informed consent: patients granting consent because they have the right to control what is done to their bodies and insisting on information so they can make an intelligent decision. For patients to be able to consent in an intelligent manner, they must be given information by the physician that a “reasonable person” in the patient’s situation would wish to receive. As such, the amount of information is not based on what the physician believes is relevant, but on what the patient believes he or she needs to hear. The “reasonable person standard” was used in a 1959 case, Canterbury v. Spence. Nineteen-year-old Jerry Canterbury, who suffered from back pain, underwent a surgical procedure to treat a suspected ruptured vertebral disk. On the day following surgery, he fell off the hospital bed while he was trying to urinate and subsequently became paralyzed from the waist down. Emergency surgery reversed some of his paralysis, but he continued to have urological problems. Canterbury sued both the physician (Spence) and the hospital, claiming that he was not fully warned about the risk of falling out of bed and of paralysis. The physician based his defense on a therapeutic privilege claim that he did not think the disclosure of the risk of falling out of bed was necessary. The judge in the district court ordered a directed verdict and told the jury that they must find in favor of the hospital and physician. Upon appeal, a higher court sent the case back to the lower court so that a jury could hear the evidence and make a decision. The court was not clear on whether the fall or the surgery had caused the patient’s paralysis. The court also declared that a physician cannot use the therapeutic privilege to justify withholding information the patient requires to make an informed decision. In an unusual decision, the jury also found in favor of the hospital and physician (Canterbury v. Spence, 464 F.2d 772, D.C. 1972).

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Except in emergency situations, the process of obtaining consent cannot be delegated by the physician to someone else. If the emergency involves risk to the patient’s life or the patient is unable to communicate, consent may be implied under the rationale that the patient would have consented to emergency treatment.

Except in cases of emergency, all patients must sign a consent form before undergoing a surgical procedure. This signed form indicates that the patient has been instructed concerning the risks associated with the procedure. If, after the physician has carefully explained the treatment, the patient acknowledges understanding the explanation and risks and signs the consent form, then, generally, there is some protection from lawsuits. However, patients have sued and won cases in which they were presented the risks of a procedure and signed the form, and then the treatment failed.

A patient’s informed consent is limited to those procedures to which the patient has consented. For example, in the case of Mohr v. Williams, a woman consented to have an operation on her diseased right ear. After she was unconscious under the anesthetic, the ear surgeon determined that the right ear was not diseased enough to warrant an operation, but the left ear was seriously diseased. He proceeded to operate on the left ear without reviving her to seek permission. The operation was skillfully performed and successful. However, the plaintiff sued for battery and won. The physician appealed that verdict, but the appellate court determined that because the surgery was unauthorized, even though successful, it constituted an assault (Mohr v. Williams, 104 N.W.12, Minn. 1905). In another early case, a physician was sued when he received consent to repair a woman’s hernia but also removed both ovaries (Zoterell v. Repp 153 N.W. 692, Mich. 1915).

Procedures in which an informed consent form should be signed include the following:

· Minor invasive surgery

· Organ donation

· Radiological therapy, such as radiation treatment for cancer

· Electroconvulsive therapy

· Experimental procedures

· Chemotherapy

· Any procedure with more than a slight risk of harm to the patient

In some circumstances—such as HIV testing, procedures involving reproduction, and major surgical procedures—state laws require that the patient sign an informed consent form. This signed document represents a legal statement in which the patient certifies that the risks, benefits, and alternatives to treatment have been thoroughly explained. The document is an indication that the informed patient enters the treatment of their own free will and not by means of coercion.

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Remember that the patient grants informed consent to the physician. Simply explaining a procedure to the patient does not constitute informed consent. The patient must understand the explanation and agree to the procedure.

Certain categories of patients are judged to be incapable of giving an informed consent. These include minors (other than emancipated minors), the mentally incompetent, persons who do not understand English or the language of the physician transmitting the information and had no interpreter present, and emergency patients who are unconscious.

Implied Consent

A physician should obtain written consent before treatment whenever possible. However, the law may assume or “imply” a patient’s consent. Implied consent can be difficult to interpret because it is based on another person’s interpretation. Implied consent occurs when patients indicate by their behavior that they are accepting of the procedure. The patient’s nonverbal communication may indicate an implied consent for treatment or examination. Because consent means to give permission or approval for something, when a patient is seen for a routine examination, there is implied consent that the physician will touch the person during the examination. Therefore, the touching required for the physical examination would not be considered the crime of battery.

In a famous precedent-setting case involving implied consent, the court declared that a woman had given consent for a vaccination when she extended her arm (O’Brien v. Cunard S.S.Co., 28 N.E. 266, Mass. 1891). Implied consent is also assumed in medical emergencies when the patient cannot respond to give consent. In this case, the law assumes that if the patient were able, consent would be given for the emergency procedure. In an Iowa case, the court determined that implied consent existed when a surgeon removed the mangled limb of a patient run over by a train because the procedure was necessary to save the patient’s life (Jackovach v. A. L. Yocum, Jr., 237 N.W. 444, Iowa, 1931).

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Both expressed and implied consent should be an informed consent. This means that patients must know, or be informed, about what they are providing consent for.

Exceptions to Consent

There are exceptions to the informed consent doctrine that are unique to each state. Some of the more general exceptions follow:

· 1. A physician need not inform a patient about risks that are commonly known. For example, physicians need not tell patients that they could choke swallowing a pill.

· 2. A physician who believes the disclosure of risks may be detrimental to the patient is not required to disclose them. For instance, if a patient has a severe heart condition that may be worsened by an announcement of risks, the physician should not disclose the risks.

· 3. If the patient asks the physician not to disclose the risks, then the physician is not required to do so.

· 4. A physician is not required to restore patients to their original state of health, and in some cases, may be unable to do so.

· 5. A physician may not be able to elicit a cure for every patient.

· 6. A physician cannot guarantee the successful results of every treatment.

Refusal to Grant Consent

Adult patients who are conscious and considered to be mentally capable have a right to refuse any medical or surgical treatment. The refusal must be honored no matter what the patient’s reasoning: concern about the success of the procedure, lack of confidence in the physician, religious beliefs, or even mere whim. Failure to respect the right of refusal could result in liability for assault and battery. In Erickson v. Dilgard, the hospital requested the court to authorize a blood transfusion over the patient’s objection. The court held in favor of the patient who refused a blood transfusion, even though the refusal could have resulted in the patient’s death (Erickson v. Dilgard, 252 2d 705, N.Y.S. 1962). The hospital and medical personnel have a responsibility to use reasonable care to protect the patient from touching (assault and battery) when consent has not been granted.

ROLE OF THE HEALTHCARE CONSUMER

Today’s healthcare consumer is better informed about medicine and treatments than ever before due to an abundance of literature, television programming, and information available on the World Wide Web. However, wise consumers will not self-medicate or offer their medications to family members and friends for their use. Healthcare personnel must carefully question all patients/consumers about over-the-counter (OTC) medications they may be taking. Many OTC medications, such as aspirin, can have a negative interaction with prescribed medications. Dietary supplements such as herbs and vitamins should also be declared by the patient. The consumer must alert the medical staff to any allergies and adverse reactions to medications.

Healthcare consumers must be honest with their physicians about prescriptions they may be taking that were prescribed by other doctors. Every patient/consumer should carry a small card listing all medication names and dosages in the event the names are needed for a patient history or in an emergency situation. They should ask questions about their medications and the treatments they are receiving. If they do not understand what they are told, then they should be persistent with the physician or healthcare professional until they do understand the instructions.

The patient/consumer can assist the physician in prevention of medical errors. Before undergoing any surgical treatment, it is important that the patients, their personal physicians, and their surgeons all are clear on what will be done. Many fail-safe approaches have been instituted by medical professionals to prevent errors. For instance, performing surgery at the wrong site, such as the right knee instead of the left knee, is rare. But to prevent this type of injury to the patient, the American Academy of Orthopedic Surgery urges all its members to sign their initials directly on the site to be operated upon before the surgery.

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It is important to remember that many patients do not understand medical terminology. They are often ashamed to admit that they either do not understand or cannot hear the instructions. It is the healthcare professional’s duty to make sure that the patient is fully informed.