Chapter 12Patient Consent                  2
Consent• Voluntary agreement by a person who possesses  sufficient mental capacity to make an intelligent choice  to allow...
Informed Consent• Legal doctrine where a patient has right to know  potential risks, benefits, & alternatives of a propose...
Assessing Decision-Making Capacity• Includes patients ability to:   – understand risks, benefits, & alternatives of a     ...
Nurses & Informed ConsentA nurse generally has no duty to – advise a patient as to a surgical procedure to be employed    ...
Physicians & Informed Consent - IPhysicians are expected disclose to their patients  the risks, benefits, & alternatives o...
Physicians & Informed Consent - II• Physicians must disclose alternatives• Physicians duty to advise: delicate medical  ju...
Course of Treatment              Patient’s Decision• Elderly woman living alone fell & fractured her hip.  An orthopedic s...
Yes!                Court’s Decision• Court held that it is necessary to advise a patient  when considering alternative co...
Lack of ConsentPatient had multiple medical diagnoses. Her physician, Dr.  Sottiurai, ordered bilateral arteriograms to de...
Trial Court Decision– The district court ruled for the plaintiffs, awarding  damages in the amount of $50,000 for Risers p...
Appeals Court’s Decision• The Court of Appeal held that Lang breached  the standard of care by subjecting the patient to  ...
Information to be Disclosed – I• A physician should provide as much information  about treatment options as is necessary b...
Information to be Disclosed – II• Courts generally utilize an "objective" or  "subjective" test to determine whether a pat...
Subjective testMust 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.• Objecti...
Consent Topics• Hospitals and Informed Consent  – specific cases in which hospitals have a duty to    provide patients wit...
Special Forms of Consent• Consent for Specific Procedures   – durgery   – diagnostic tests• Temporary Consent   – summer c...
Limited Power of AttorneyAuthorizes, for example, school officials, teachers, and camp counselors to act on the parents or...
Implied Consent - I• Presumed when immediate action is required  to prevent death or permanent injury• Unconscious patient...
Implied Consent -II• Consent generally assumed  – Ambulance Care     • Good Samaritan Statutes  – Emergency Departments   ...
Statutory Consent• Legislation adopted by states concerning  emergency care• Emergency care in most states eliminates the ...
JUDICIAL CONSENT•   May be periodically necessary•   When alternatives exhausted•   2nd opinions by consulting physicians ...
Who May Consent•   Competent patients•   Guardianship•   Consent for minors•   Emancipated minors•   The right to choose  ...
Incompetent Patient• Ability to consent is a question of fact• Physicians on the best position to make that  determination...
Right to Refuse Treatment• Patients have a right to refuse treatment   – Must be conscious and mentally competent• Hospita...
Release formPatients refusal to consent to treatment, for any  reason, religious or otherwise, should be noted  in the med...
Exculpatory Agreements• An agreement that relieves an individual from  liability when he or she has acted in good faith.• ...
Proving Lack of Consent1. Reasonably prudent person in the patient’sposition would not have undergone the treatmentif full...
Informed Consent            Claims and Defenses• Risk not disclosed is commonly known• Patient assured practitioner that h...
Informed Consent and           Disclosure of Risks• Requires physicians to disclose the risk  benefits and alternatives of...
REVIEW QUESTIONS1. Who should be responsible for reviewing with the   patient the risks, benefits, and alternatives of a  ...
REVIEW QUESTIONS, con’t5. Can a parent refuse to consent to a lifesaving   procedure for his or her child? Discuss your an...
5530: Chapter 12
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5530: Chapter 12

  1. 1. Chapter 12Patient Consent 2
  2. 2. 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. – Express consent can take the form of • verbal agreement • written document authorizing medical care. – Implied consent is determined by some act or silence, which raises a presumption consent has been authorized (e.g., patient in accident & in comatose state). 3
  3. 3. Informed Consent• Legal doctrine where a patient has right to know potential risks, benefits, & alternatives of a proposed procedure.• Patient has absolute right to know about & select from available treatment options.• Informed consent is predicated on the duty of the physician to disclose sufficient info to enable the patient to evaluate proposed medical or surgical procedures before submitting to them. 4
  4. 4. Assessing Decision-Making Capacity• Includes patients ability to: – understand risks, benefits, & alternatives of a proposed test or procedure – evaluate info 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 5
  5. 5. Nurses & Informed ConsentA nurse generally has no duty to – advise a patient as to a surgical procedure to be employed • however, may confirm with patient that the physician has explained the procedure – advise patient as to the risks, benefits, & alternatives to a recommended procedure • this is the physician’s responsibility – obtain a patients informed consent • P & P may provide that the nurse may witness that the risks, benefits & alternatives have been explained. 6
  6. 6. Physicians & Informed Consent - IPhysicians are expected disclose to their patients the risks, benefits, & alternatives of recommended procedures. – Disclosure should include what a reasonable person would consider material to his or her decision of whether to or not to undergo treatment. 7
  7. 7. Physicians & Informed Consent - II• Physicians must disclose alternatives• Physicians duty to advise: delicate medical judgment 8
  8. 8. Course of Treatment Patient’s Decision• Elderly woman living alone fell & fractured her hip. An orthopedic surgeon reviewed the patients condition & decided that rather than utilizing a pinning procedure for her hip =, it would be better to adopt a conservative course of treatment, bed rest.• Prior to her injury, plaintiff maintained an independent style of living.• Expert testimony at trial indicated that bed rest was an inappropriate treatment. – Was the patient successful for not being informed as to alternatives courses of treatment? 9
  9. 9. Yes! Court’s Decision• Court held that it is necessary to advise a patient when considering alternative courses of treatment. The physician should have explained medically reasonable invasive & noninvasive alternatives, including risks & likely outcomes of those alternatives, even when the chosen course is noninvasive. – See text case: Matthies v. Mastromonaco 10
  10. 10. Lack of ConsentPatient had multiple medical diagnoses. Her physician, Dr. Sottiurai, ordered bilateral arteriograms to determine cause of the patients impaired circulation. De La Ronde Hospital could not accommodate Sottiurais request & patient was transferred to Dr. Lang, a radiologist at St. Jude Hospital. Lang performed a femoral arteriogram, not the bilateral brachial arteriogram ordered by Sottiurai. The patient was prepared for transfer back to De La Ronde Hospital. Shortly after the ambulance departed, patient suffered a seizure in the ambulance & was returned to St. Jude. Risers condition deteriorated & died 11 days later. Plaintiffs claimed Riser was a poor risk for the procedure. – What did the trial court determine? 11
  11. 11. Trial Court Decision– The district court ruled for the plaintiffs, awarding damages in the amount of $50,000 for Risers pain and suffering and $100,000 to each child. Lang appealed.– On appeal, what did the appeals court determine? 12
  12. 12. Appeals Court’s Decision• The Court of Appeal held that Lang breached the standard of care by subjecting the patient to a procedure that would have no practical benefit to the patient, that Lang failed to obtain informed consent from the patient. – See text case: Riser v. American Medican Intern, Inc. 13
  13. 13. Information to be Disclosed – I• A physician should provide as much information about treatment options as is necessary based on a patients personal understanding of the physicians explanation of the risks of treatment & the probable consequences of treatment. Needs of each patient can vary depending on age, maturity, & mental status.• Individual responsible for obtaining consent must weigh importance of giving full disclosure to the patient against likelihood such disclosure will adversely affect the patient’s decision. 14
  14. 14. Information to be Disclosed – II• 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, & alternatives of the procedure. 15
  15. 15. Subjective testMust determine if the “individual patient” would have chosen the procedure if fully informed. 16
  16. 16. Objective test• Must show that a “reasonable person” would not have undergone a procedure if properly informed.• Objective Test Preferred 17
  17. 17. Consent Topics• Hospitals and Informed Consent – specific cases in which hospitals have a duty to provide patients with informed consent.• Adequacy of Consent• Verbal Consent – Verbal Consent to Surgery Sufficient• Written Consent• Consent for Routine Procedures 18
  18. 18. Special Forms of Consent• Consent for Specific Procedures – durgery – diagnostic tests• Temporary Consent – summer camp• Implied Consent – car accident, patient unconscious 19
  19. 19. Limited Power of AttorneyAuthorizes, for example, school officials, teachers, and camp counselors to act on the parents or legal guardians behalf when seeking emergency care 20
  20. 20. Implied Consent - I• Presumed when immediate action is required to prevent death or permanent injury• Unconscious patients are presumed under the law to approve treatment that appears necessary 21
  21. 21. Implied Consent -II• Consent generally assumed – Ambulance Care • Good Samaritan Statutes – Emergency Departments • When patient clinically unable to give consent 22
  22. 22. Statutory Consent• Legislation adopted by states concerning emergency care• Emergency care in most states eliminates the need for consent• Occurs when a patient is clinically unable to give consent• Assumes that a reasonable person would consent to life-saving medical intervention 23
  23. 23. JUDICIAL CONSENT• May be periodically necessary• When alternatives exhausted• 2nd opinions by consulting physicians helpful• On-call legal advice should be sought 24
  24. 24. Who May Consent• Competent patients• Guardianship• Consent for minors• Emancipated minors• The right to choose 25
  25. 25. Incompetent Patient• Ability to consent is a question of fact• Physicians on the best position to make that determination 26
  26. 26. Right to Refuse Treatment• 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 27
  27. 27. Release formPatients 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. Completed release provides documented evidence of a patients refusal to consent to a recommended treatment. 28
  28. 28. Exculpatory Agreements• An agreement that relieves an individual from liability when he or she has acted in good faith.• Exculpatory agreements generally invalid in health care setting. 29
  29. 29. Proving Lack of Consent1. Reasonably prudent person in the patient’sposition would not have undergone the treatmentif fully informed2. Lack of informed consent is the proximatecause of the injury for which recovery is sought 30
  30. 30. Informed Consent Claims and Defenses• Risk not disclosed is commonly known• Patient assured practitioner that he or she would undergo treatment regardless of the risk – e.g., Patient did not want to know about the risks• Consent was not reasonably possible.• Practitioner reasonably believed the manner & extent of disclosure could reasonably be expected to adversely & substantially affect patients condition. 31
  31. 31. Informed Consent and Disclosure of Risks• Requires physicians to disclose the risk benefits and alternatives of a procedure• Not merely a tool to avoid lawsuits• The doctrine of informed consent is firmly rooted in the notions of liberty and individual autonomy 32
  32. 32. REVIEW QUESTIONS1. Who should be responsible for reviewing with the patient the risks, benefits, and alternatives of a proposed diagnostic test or treatment?2. Describe what information a patient should be provided prior to undergoing a risky procedure in order for consent to be informed.3. Why is it important to obtain consent from a patient prior to proceeding with a risky procedure?4. Can a patient consent to a procedure and then withdraw it? 33
  33. 33. REVIEW QUESTIONS, con’t5. Can a parent refuse to consent to a lifesaving procedure for his or her child? Discuss your answer.6. Discuss how much information is sufficient in order for informed consent to be effective (e.g., consider your answer here from both the objective and subjective forms of consent).7. Discuss the implications of the following statement: "Patients are generally persons unlearned in the medical sciences and, therefore, except in rare instances, the knowledge of patient and physician is not in parity." 34

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