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

prospective reimbursement systems reverse these incentives and begin to penalize
physicians for ordering tests. There are risks associated with ordering unnecessary
tests but much greater risks in failing to order a necessary test.
5. Sexual Relationships with Patients
The sexual exploitation of patients has been a high-visibility malpractice issue for
psychiatrists. In psychiatry the conflict of interest is clear because the patient is by
definition at a psychological disadvantage. The conflict is also clear in any situation
in which the sexual relations could be termed sexual assault. This includes any
sexual relations in a medical care delivery setting with a patient who is not the
medical care provider’s spouse. The more common problem is the physician who
becomes romantically involved with a nonpsychiatric patient. It is important that the
physician not continue providing major medical care for such a patient, and it is
preferable that the patient be referred to another physician for all medical treatment.
E. Consent for Minors
Pediatrics, or more specifically, the medical care of children, is the most legally
distinct of the medical specialties. This legal uniqueness has three threads. The first is
consent to care. Children may not legally determine their own care, but neither are
parents fully empowered to control their child’s medical care. The second is
communication with the physician. Very young patients are unable to communicate
their medical needs to a physician effectively. Finally, childhood immunizations are
the front line in protecting society from epidemic communicable diseases.
Immunization, with the potential risk of serious sequelae, creates a conflict between
the child’s individual medical care needs and the protection of society.
Until the late 1800s, parents had almost unlimited power over their children. Physical
abuse of children was tolerated, and neglect, even to the point of death, was common.
Children were treated as the property of the father. This presumption of complete
power over the child was challenged under the laws designed to prevent cruelty to
animals. Specific child protective laws followed, and now all states attempt to protect
children from abuse and neglect. These laws, combined with public health laws and the
U.S. Supreme Court decisions on reproductive rights, have greatly limited parental
rights to deny children needed medical care.
In general, persons under 18 years old do not have the right to consent to their own
medical care. Unless the parents’ legal rights have been terminated, the parents of a
minor have the sole authority to consent to medical care for the minor. In most states,
if the parents are married to each other, they have an equal right to consent to medical
care for the children of that marriage. If the parents are divorced or were never
married, the parent with legal custody of the child may have the sole right to consent to
care for the child. This does not give the physician the legal right to force care on a
mature minor, nor may the physician render medically questionable care, such as a
sterilization, at the parents’ request.
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