Public Health Law Map - Beta 5 - Medical and Public Health Law Site

informed consent.
1. The Emergency Exception
The emergency exception to the need for consent is based on the premise that a
reasonable person would not want to be denied necessary medical care because he or
she happened to be too incapacitated to consent to the treatment.
The major abuse of the emergency exception to the need for consent is its use as a
justification for treating chronically ill patients who are incompetent to consent to
medical care. The emergency exception is just that—an exception limited to
emergencies. These may be in the emergency room, or they may involve patients in
the hospital who have an unexpected event such as a cardiac arrest. The emergency
exception does not apply to an incompetent patient in need of routine care.
Chronically incompetent patients should have a legal guardian.
a) When Does the Emergency Exception Apply?
There are very few cases that directly address the emergency exception. It usually is
only discussed indirectly in cases that really involve failure of informed consent.
Because these cases do not involve emergency treatment facts, the judges usually
present the emergency exception as only applying when the patient is incompetent
and in need of treatment to save his or her life or to prevent permanent disability.
Although this is a correct statement of the law, the actual application of the
emergency exception includes procedures to determine whether the patient might
need medical care. For example, one of the few cases to directly litigate the
emergency exception involved a very drunk patient (blood alcohol of .233%) who
was brought into the emergency room after an automobile accident.
Based on the patient’s complaints, the nature of the accident, and the physical
examination, the emergency room physician decided to do a diagnostic peritoneal
lavage. The patient asked what was going to be done, and when told, became
belligerent and tried to leave the emergency room. The patient was restrained and
sedated, and the procedure performed. The patient later sued for battery and failure
of informed consent. The trial court would not allow the defendant hospital to assert
the emergency exception as a defense. After an excellent review of the emergency
exception doctrine, the Rhode Island Supreme Court found that this was an
appropriate use of the emergency exception. [Miller v. Rhode Island Hosp., 625
A.2d 778 (R.I. 1993).] This comports with the usual emergency room practice of
evaluating all patients who are unable to consent to determine if they are in need of
emergency care. It is not unusual for patients, especially drunks, to fight the
evaluation. It is likely that if the emergency room let a very drunken and potentially
seriously injured patient leave without evaluation, and that patient died from lack of
care, the emergency room would be sued for failing to restrain the patient.
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