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

consent to risks of the treatment becomes ineffective.
c) Voluntariness
Consent to medical care can be truly voluntary only when it is reasonable to reject
the care. Certain religious groups aside, a patient can be assumed to accept the risks
of lifesaving care. The law recognizes this in its requirement that a patient convince
the jury that he or she would have forgone the treatment had the risk in question
been made clear. The more clearly necessary a treatment is, the less meaningful is
the idea of informed consent. Yet even in life-threatening situations, voluntariness
can be an issue if there is more than one appropriate treatment. The patient might
not reasonably reject all treatment but may justifiably argue that he or she might
have chosen a different treatment.
Voluntariness becomes a legal issue if the physician coerces the patient into
accepting a treatment for which there are acceptable alternatives. This coercion may
be explicit—telling the patient that he or she will die without the proposed
treatment at once—or implicit—ignoring the discussion of alternatives or financial
intimidation. Physicians who cooperate with third-party payers to limit patients’
treatment options undermine the voluntariness of patient consent. They should not
be surprised if a court determines that this renders the patient’s informed consent
invalid.
d) Public Policy
A patient may assume only risks that arise from appropriate care. For example, any
operation done under general anesthesia carries a small risk of anoxic brain
damage. Assume that a patient consents to general anesthesia, including
acknowledging the risk of brain damage. The anesthesiologist then negligently
overdoses the patient with an anesthetic agent, fails to monitor the patient, and
discovers the mistake only after the patient is brain injured. The patient’s informed
consent to the risks of anesthesia would not prevent the patient from suing for the
negligent administration of anesthesia.
The law does not allow a provider to force a patient to assume the risks of negligent
medical care because of the involuntary nature of medical care. A person providing
a necessary service has a duty to provide that service in a proper manner. This
policy is intended to preserve the quality of necessary services. Conversely, it does
not apply to services that the consumer may freely reject. For example, in most
states, a skydiving service can successfully require that a customer waive the right
to sue for all risks, including those from negligent acts of the service. This is
accepted because skydiving is a purely voluntary activity.
e) Medically Unnecessary Procedures
The most difficult informed consent problems are those that arise from competently
286