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Sanders J. The revolution in medical care delivery. ND Law Rev. 1997;73:19. Smith MF. Telemedicine and safety. J Telemed Telecare. 1996;2:33–36. Telemedicine presents new malpractice concerns according to physician insurers association. J Okla State Med Assoc. 1997;90:101–102. Ziel SE. Telecommunications in medical care. AORN J. 1998; 67:458–459. X. Consent to Medical Treatment HIGHLIGHTS Introduction Informed consent is the core principle of modern medical practice. In some very limited circumstances, care can be provided without consent. Medical care practitioners must disclose conflicts of interest that might affect their clinical judgment. There are special laws governing consent for minors and incompetents. Patients have the right to refuse medical care, even when it means they will die. Patients do not have a right to improper care or assisted suicide. The doctrine of informed consent is the cornerstone of modern medical jurisprudence. Although the need for bare consent to treatment is old, informed consent arose after World War II, driven by the Nuremberg Doctrine and the rise of technological medicine. It has been one of the most misunderstood principles in medical law, sometimes driving a wedge between patients and physicians. Now it is returning to its roots in the physician’s fiduciary duty to the patient, as consent issues shift from concerns about unnecessary or inappropriate treatments to denial of treatment driven by managed care organizations’ cost cutting. This section reviews the history of informed consent and discusses the different standards governing simple and informed consent. These standards reflect the conflict between legal ideals of medical care and its reality. Patient advocates and many physicians view informed consent as a way to empower patients, thereby making them equal partners in the therapeutic relationship. This is a naive view of informed consent. Informed consent does not affect the disparity in power and knowledge between physicians and patients. Informed consent is very important at the margin, when there are clear, simple-to-understand choices. It cannot protect patients from overreaching by physicians or from antiscientific delusions about medical treatments. Good science and proper standards for medical practice are more empowering than elaborate informed consent rituals. Informed consent is a laudable goal, but it is possible to comply with the legal standards for informed consent without effectively involving the patient in the decision-making process. When this happens, physicians lose the true value of informed 273
consent: reducing conflicts with patients through dissipating unreasonable expectations. A. Battery—No Consent As a pure legal issue, forcing treatment on an unwilling person is no different from attacking that person with a knife. The legal term for a harmful or offensive touching without permission is battery. Battery is a criminal offense, and it can also be the basis of a civil lawsuit. The key element of battery is that the touching be unauthorized, not that it be intended to harm the person. Thus forcing beneficial care on an unwilling patient would be battery. The classic statement of a physician’s duty to get the patient’s consent is Justice Cardozo’s opinion in Schoendorff v. Society of New York Hospital: [Schoendorff v. Society of New York Hosp., 105 N.E. 92, 93 (N.Y. 1914)] Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages. This is true except in cases of emergency, where the patient is unconscious and where it is necessary to operate before consent can be obtained. 1 Yet even this statement is hedged. The strong language mandating consent for every person is qualified with the right to treat a person without consent in an emergency. In fact, battery is only an issue in very limited circumstances where there is a complete failure of consent and no other legal justifications for treating the patient without consent. In most circumstances, where a patient voluntarily seeks treatment, the patient will be found to have implied his or her consent to the treatment by merely submitting to the treatment. Only consent is implied, however, not informed consent. Battery is a legal threat in three situations. If the patient has been lied to about the treatment or there is other fraud in the informed consent, then the entire consent is invalid. The second situation is when the patient is incompetent to consent and receives improper care. The most likely scenario is the third: the patient has refused care and the care is forced on him or her, typically in an involuntary setting. As discussed later, a patient who refuses care may not be treated without the authorization of a court. This can support a civil lawsuit for battery. Yet even when a patient has refused care, the physician is unlikely to be charged with the crime of battery if the treatment was meant to be beneficial. This is not an endorsement for acting against a patient’s will. It is a recognition that the criminal law is reticent to punish physicians unless it is clear that they intended to cause harm. B. Exceptions to the Requirement for Consent There are two well-recognized exceptions to the need for consent to medical treatment. The more common is a medical emergency, in which an unconscious or delirious patient cannot consent. The second is less common and involves certain court-ordered treatments or treatments and tests mandated by law. It is important to note that these are exceptions to the need for any consent at all, not just exceptions to the need for 274
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Public Health Law Map - Beta 5.7 I.
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1942.] The English statutory and co
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health or individual health officer
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actions through the district attorn
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3. The Judicial Branch The federal
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consumer protection, such as requir
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With these exceptions, most litigat
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the court in Los Angeles might allo
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subject matter and may also have in
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2. Implementing ADR The major benef
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III. Tort Claims against Private Pa
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cannot be proved, but it is clear t
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uterus, triggering a miscarriage. T
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first were passed immediately after
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years. If the practitioner violates
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defendant’s conduct or (for the d
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proving a case against a physician
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e important for their adult medical
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emoving the plantar wart. This emph
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Blake BL. Sgt. Friday, Dr. Welby, a
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Walter C, Richards EP. Keeping junk
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earning capacity. b) Medical Expens
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simple as installing wheelchair ram
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cases do not give rise to injury-re
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medical costs from the lawsuit. Som
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compilation of legal principles. It
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traditional sense. Fetal heart moni
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oxygen saturation. When saturation
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1993;56:12-14. King JY. Practice gu
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are handled through an administrati
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U.S.C. § 1491. As such, the Court
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waiving immunity provide the only m
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against the United States in federa
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A discretionary function is an act
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deviant sexual conduct by an Air Fo
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The government can be liable under
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decision of the hospital officials
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constitutional rights have been vio
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case basis. The critical element in
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allegedly defective product was a m
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that state law is displaced if it i
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adopted. Therefore, Congress may au
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alleged. The “color of state law
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Importantly, the DeShaney analysis
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In the context of public health, on
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Also, immunity from suit is preserv
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The mere fact a private corporation
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1. Absolute Immunity Absolute immun
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prisoners were infected with HIV an
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against physicians who sold prescri
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The key distinction between crimina
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it almost impossible for practition
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forced to give hair samples, blood
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medical care practitioner does not
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assume that a hospital has an incen
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fined not more than $25,000 or impr
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charitable, religious, or philanthr
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(2) The Everyone-Does-It Defense De
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automatically invoke attorney-clien
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The Federal government, and several
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e of no benefit to the community, t
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activities of the large professiona
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Some of these provisions, such as t
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not support the scheme to reduce ho
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(1) Sentencing Guideline Standards
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did not provide full information ab
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5. If an employee chooses not to re
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documents until the court had made
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Frech HE III, Danger KL. Exclusive
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1998;29:16-18. Stahl DA. Consolidat
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tampering. b) Search Warrants If th
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defense lawyers to fight claims tha
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a) Service of Process One distressi
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provide as little speculation from
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place for the deposition. Each part
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should include a signed release by
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juries will disregard scientific ev
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the jury may be out of the room for
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entered the patient’s description
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the information being presented is
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are situations where what is genera
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test so generously that it also gav
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defendant’s failure to render the
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fees may be construed as attempting
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Fish R, Rosen P. Physicians should
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$150,000 to fight a case that could
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case; rather, it encourages the att
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were below the acceptable standard
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A. Establishing Agencies For its fi
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local level because the employees a
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dispute before the court. The lawye
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c) The Goldberg Rights Persons whos
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the cost of butter. A public intere
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standards and who agree to complian
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a) Agency Interpretation of Law All
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Johnson JA. Court limits board of m
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persons—business law, constitutio
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5. Corporate Employers and Institut
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prohibited the attorney from asking
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supervising the work. A more fundam
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medical problems. Whether it is can
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for buying insurance is that it pay
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Lawyers working on a contingency do
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Review deposition summary: 30 Novem
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of an effective preventive law plan
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ibes were in the form of consulting
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detailed summaries of important doc
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A very important part of the invest
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cases. Houston Bar Assoc. 1996;34:2
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state civil rights laws and health
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must carry out these actions correc
Page 223 and 224: c) Informal Consultations One of th
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Page 227 and 228: The manufacturers of emergency kits
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Page 231 and 232: any differences of opinion between
Page 233 and 234: to refer a patient to such an insti
Page 235 and 236: help the patient deal with the insu
Page 237 and 238: diagnostic interest to the physicia
Page 239 and 240: attendant duties. When they exercis
Page 241 and 242: physician must be notified at once.
Page 243 and 244: to find a specialist willing to see
Page 245 and 246: physicians, a recent U.S. Supreme C
Page 247 and 248: The law requires a physician to pro
Page 249 and 250: proper diagnosis. The physician los
Page 251 and 252: possible, the letter should be sent
Page 253 and 254: states than in others.) The best ra
Page 255 and 256: Medical licensing agencies and medi
Page 257 and 258: If there is a physician-patient rel
Page 259 and 260: (1) In general If any individual (w
Page 261 and 262: subject to a civil money penalty of
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Page 265 and 266: (A) Placing the health of the indiv
Page 267 and 268: may not transfer the individual unl
Page 269 and 270: sent by certified mail, return rece
Page 271 and 272: Berlin L. Communication of the sign
Page 273: evaluation of distance medicine tec
Page 277 and 278: ) Children in the Emergency Room A
Page 279 and 280: such as cancer should be withheld f
Page 281 and 282: eing challenged over their good- fa
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Page 285 and 286: usual in the community, and in othe
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Page 289 and 290: ) Reasonable-Patient Standard This
Page 291 and 292: candidates for treatment if their u
Page 293 and 294: prospective reimbursement systems r
Page 295 and 296: The child’s legal status should b
Page 297 and 298: litigation. Most states allow a phy
Page 299 and 300: should be reported to the child pro
Page 301 and 302: mental suffering and injury. 5. No
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Page 305 and 306: (1) The research involves no more t
Page 307 and 308: different dialects but with differe
Page 309 and 310: to consent to medical care. Convers
Page 311 and 312: person. The power of attorney may b
Page 313 and 314: eligious reasons. Parents may refus
Page 315 and 316: life-support technologies, patients
Page 317 and 318: use every possible avenue to prolon
Page 319 and 320: decision? The court found that Miss
Page 321 and 322: Cruzan really dead? Justice Rehnqui
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) Following the Patient’s Wishes
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Few termination of life-support cas
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than any element of human behaviora
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Law Policy. 1997;361. Brody, H. Com
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Furthermore, a physician who withdr
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Cunningham N. Fear and informed con
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Invest Radiol. 1996;31:109-113. Nic
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interests test. J Leg Med. 1991;12:
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esearch subjects: proposed guidelin
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1994;8:19-27. Silverman HJ. Ethical
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Insurance Portability and Accountab
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physician, just as the records of c
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and if the patient is the victim of
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Disabilities Act (ADA) limits an em
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that is part of routine medical car
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A description of each purpose of th
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services to the medical care provid
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Access to the records is subject to
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Use appropriate safeguards to preve
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when they were designing research s
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such as an antitrust or false claim
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contain, the potential for harm in
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identification of abnormal findings
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Anything that indicates special tre
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put in the chart to document that t
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keep personal notes, and often the
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night unless she has a serious conc
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difficult to authenticate, unless t
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225. Smith J. Good medical records
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The legal consequences of the corpo
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to set up their own practices or wo
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California. Independent Contractor:
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physician fail to obtain a proper i
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When a physician recommends unneces
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Because employers attempt to limit
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utilization review organization den
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to influence a treating doctor’s
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important if the employee injures a
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these rules vary greatly from state
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If, as frequently happens, the pati
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eviewed completely by the supervisi
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protocols become generic documentat
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the physician is directly supervisi
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a. Penicillin V potassium 250 mg q.
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they hospitalize or refer a patient
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patient’s right of privacy should
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Medical students are often enthusia
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unauthorized practice of medicine.
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staff knows that the orders are onl
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is injured by a fellow workers’ n
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limited due process restrictions on
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agreeing to reimburse the MCO for a
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collective action, a close reading
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Med Soc. 1996;148:341-343. Maurer W
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Fiesta J. Delegation, downsizing an
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XIV. Peer Review and Deselection HI
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the development of new legal theori
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juror’s perspective, peer review
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to deal fairly with citizens, these
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5. There is an overriding national
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a) Notice of a Right to a Hearing T
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equest, to the physician or practit
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subchapter. Information about malpr
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the standards set forth in the Act,
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2. The Problem of Bias Until recent
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from general disclosure, but it sho
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do cost-cutting that the physicians
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Med. 1997;18:521-538. Maguire D. Te
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Introduction All medical care pract
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we are due for another worldwide ep
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include nurses, dentists, veterinar
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marital disharmony. In the classic
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criticisms of the cost of contact t
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diseases such as the Marburg or Ebo
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organized, powerful political lobby
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homosexual activists and the religi
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eligion or conscience. Thus, he can
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high, amounting to several dollars
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1. Birth Certificates Normally the
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caused or contributed to by infecti
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D. Law Enforcement Reporting Every
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campus police. The campus police de
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the law enforcement authorities are
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when they are acting as officers of
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eporting practices. J Emerg Med. 19
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Starr P, Starr S. Reinventing vital
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October;51:132]. J Am Med Womens As
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laws governing air and water pollut
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the widespread occurrence of tooth
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within the power of the judiciary t
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[specify fluoridation measure at is
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Still other arguments center on all
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(Wash. 1955); Rogowski v. City of D
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adverse effects would occur was arb
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Kaul v. City of Chehalis, 277 P.2d
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Introduction There are special cons
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Under no circumstances should medic
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patients about high-risk behavior a
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arrier method that is only 70% effe
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injectable contraceptive that lasts
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that HIV is less of a threat than a
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for procedures affecting reproducti
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funded services to coerce a person
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The person who obtains the consent;
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The recognition of personal privacy
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medically necessary: On their face,
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Although abortion is still a surgic
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The presumption of legitimacy was a
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Unfitness is also narrowly defined
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consistent with public health and s
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constitutional protections or feder
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information in violation of confide
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Mary Sue’s ova were successfully
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But the rule does not contemplate t
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as not to violate this prohibition.
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committed before she knows the stre
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1. Adoption 2. Family Planning and
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Soderberg H, Andersson C, Janzon L,
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Hum Reprod. 1992;7:1029-1033. Snowd
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condition. This conflict can take t
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eaching a level of 1 per 11 births
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who has finally conceived after thr
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should be sure that she understands
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The treatment of infertility poses
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disorder should not be helped to co
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Choosing a sperm donor can be legal
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prevent the spread of disease, and
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problems before they cause accident
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Beyond a structured prenatal care s
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patient’s decisions. The patient
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covered in signs that ask women if
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decisions not to use medical interv
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lifesaving care. Many physicians ig
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profound differences in the underly
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midwife’s skills and judgment, as
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who might sue on her behalf or on t
Page 597 and 598:
contraception, but contraception ha
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One example has been the developmen
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Marshall BM. Ethical issues in assi
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1995;115:39-43. Greely HT. Genetic
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3. General Obstetrics Abrams FR. Co
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King NM. Informed consent and the p
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XIX. Occupational Medicine and Disa
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and balances inherent in having gen
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putative illness, requesting an exc
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compensation system. The company ma
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In some circumstances, the union ma
Page 619 and 620:
ethical obligations concerning the
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Records concerning voluntary employ
Page 623 and 624:
employee’s health status.” In t
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films shall be preserved in their o
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Employees may also have a financial
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available information on the proper
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lood tests that are medically neces
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hospital. Both the medical care pro
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Section 504 was a remedial statute
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or recurrent, that the key word was
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government officials investigating
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incorrect, so this area of the law
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is to ensure that patients have eno
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problems. The Court also reiterated
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the medical problems have affected
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normal eyes and kidneys and no peri
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not constitute a disability. The pa
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workplace, their legal status is no
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hepatitis A, the onset of the disea
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(2) The nature and severity of the
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Many diseases are spread by insects
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eporting duties that apply to the c
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9. Bloodborne Pathogens All workpla
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this includes all types of medical
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clinics or home health visits. An i
Page 669 and 670:
Purtilo RB. Ethical issues in the h
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Disabilities Act: a decision analys
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occupational accidents and diseases
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1998;13:241-272. Pollack R. Update
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legislation, set minimum standards
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hearing seems to be rooted in the l
Page 681 and 682:
ates among drug addicts. Beyond the
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Team physicians’ duties are to th
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first aid and training programs are
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equired by the school is not accept
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interfere with getting the child pr
Page 691 and 692:
4. Handicapped Children Handicapped
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1996;35:237-242. Cheng TL, Savageau
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Med Sci Law. 1995;35:45-47. Mitten
Page 697 and 698:
handling prisoners in a burns unit.
Page 699 and 700:
legislation. The FDA, DHHS, HCFA, a
Page 701 and 702:
of a lower court to a higher, appel
Page 703 and 704:
assaulted will bring a legal action
Page 705 and 706:
anesthesiologists and nurses with i
Page 707 and 708:
Negligence to consider the plaintif
Page 709 and 710:
declaratory judgments about the con
Page 711 and 712:
Durable Power of Attorney ensurance
Page 713 and 714:
fiduciary relationship, as is the r
Page 715 and 716:
Hearsay Rule Testimony of what anot
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In Loco Parentis Literally, in the
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to dangerous products such as drugs
Page 721 and 722:
filing of all official documents. I
Page 723 and 724:
Perjury The willful act of giving f
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had that reasonable person been in
Page 727 and 728:
RICO The common abbreviation for st
Page 729 and 730:
person seeks damages or other legal
Page 731 and 732:
appropriateness. Vacate When a cour
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