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

attorney review any agreements.) A husband has no veto or right to be informed of
his wife's decisions on contraception, sterilization, or abortion. The state may also
determine what care can be obtained or refused under its power to protect either the
public health and safety or the best interests of an individual. Unless the state or
federal government has passed a law governing consent or access to the care in
question, the decision rests with the woman and her medical care practitioner.
Medical care practitioners should encourage women to discuss reproductive choices
with their husbands or significant others, but it is improper to require the husband's
consent. No court has allowed a husband to recover from a medical care practitioner
on the theory that the husband had a right to be consulted about his wife's medical
care. Medical care practitioners who obtain a husband's consent rather than the wife’s
(unless the husband is the legal guardian or has been delegated the right to consent in
a durable power of attorney) can be liable for battery to the wife. A more subtle risk
arises when the husband and wife are estranged or legally separated. In these cases,
the wife’s expectation of privacy is great, and a medical care practitioner who
consults her husband without her permission can be sued for breaching the
confidential relationship. This becomes a serious medical risk if necessary care is
denied or delayed because of a husband’s wishes or because of a delay in finding the
husband, or because the communication to the husband triggers abuse of the wife.
Medical care practitioners should be very careful about interfering in marital
relationships and about giving out patient information to spouses. If a patient does
not want a spouse or family member to be informed about medical care, this wish
must be honored. In one case, a woman who did not want more children was taking
oral contraceptives without her husband’s knowledge. When the husband asked the
family doctor why the couple had not conceived, the doctor told the husband about
the pills. The husband went home and severely beat his wife. In this case, the
medical care practitioner could be held liable for the beating because it was a
foreseeable consequence of the medical care practitioner’s improper disclosure of
private medical information.
B. Taking a Sexual History
All reproductive care begins with a sexual history. Traditionally, medical care
practitioners avoided discussing sexual practices with their patients, due partly to
mutual embarrassment and, more recently, a fear of seeming judgmental. This
reticence has contributed to the epidemic spread of sexually transmitted diseases,
including HIV. It has also encouraged the perpetuation of the stereotyping of patients,
especially women, by the medical care practitioner’s assumptions about their sexual
behavior. Sexually active females were not provided information because it was
assumed they knew everything; those who were not obviously sexually active were
assumed not to need the information. Patients were sometimes injured by medical care
practitioners who missed diagnosing sexually transmitted diseases because they
assumed the patient was not sexually active.
Medical care practitioners can ignore patient sexuality no longer. They must ask
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