HADM - Legal Chapter 14
Who is responsible for giving the patient informed consent?
should be the result of an active process of dialogue between the patient and physician.
What is an exculpatory agreement?
that relieves one from liability when he or she has acted in good faith.
What must a physician do when giving the patient informed consent about a proposed treatment?
A patient is considered competent to make medical decisions regarding his or her care unless a court determines otherwise.
What must the physician provide to the patient with informed consent?
Alternatives
There are sometimes individual consent forms for particular procedures.
True
What does the clinical assessment of decision making capacity include?
Understand the risks, benefits, and alternatives of a proposed test or procedure Evaluate the information provided by the physician Express his or her treatment preferences Voluntarily make decisions regarding his or her treatment plan without undue influence by family, friends, or medical personnel
Is verbal consent as effective as written consent? Is written consent preferable? Why or why not?
Verbal consent, if proved, is as binding as written consent because there is, in general, no legal requirement that a patient's consent be in writing. No, oral consent is more difficult to corroborate.
What is informed consent
a legal doctrine that provides that a patient has the right to know the potential risks, benefits, and alternatives of a proposed procedure.
What is a guardian
an individual who, by law, is vested with the power and charged with the duty of taking care of a patient by protecting the patient's rights and managing the patient's estate.
What is a limited power of attorney?
authorizes, for example, school officials, teachers, and camp counselors to act on a parents' or legal guardian's behalf when seeking emergency care for an injured student or camper. Such consent for treatment provides limited protection in the care of a particular child.
Expressed Consent
can take the form of a verbal agreement, or it can be accomplished through the execution of a written document authorizing medical care.
What are the primary responsibilities under HIPAA?
gives individuals a fundamental new right to be informed of the privacy practices of their health plans and of most of their health care providers, as well as to be informed of their privacy rights with respect to their personal health information. Health plans and covered health care providers are required to develop and distribute a notice that provides a clear explanation of these rights and practices. The notice is intended to focus individuals on privacy issues and concerns, and to prompt them to have discussions with their health plans and health care providers and exercise their rights.
With emancipated minors, who can consent on their behalf?
have a right to make their own medical care decisions.
What do courts say can be taken into account when determining whether the patient has received sufficient information to give consent?
have recognized that the condition of a patient may be taken into account to determine whether the patient has received sufficient information to give consent. The individual responsible for obtaining consent must weigh the importance of giving full disclosure to the patient against the likelihood that such disclosure will seriously and adversely affect the condition of the patient.
Implied Consent
is determined by some act or silence, which raises a presumption that consent has been authorized
Who has the authority to provide informed consent for a child?
- Parents generally have the right - vary from state to state and should be referenced as necessary.
If a patient (or patient's surrogate) alleges lack of informed consent, what must they Prove?
A reasonably prudent person in the patient's position would not have undergone the treatment if fully informed. The lack of informed consent is the proximate cause of the injury or condition for which recovery is sought.
What are the defenses to a claim that informed consent was not obtained?
A reasonably prudent person in the patient's position would not have undergone the treatment if fully informed. The lack of informed consent is the proximate cause of the injury or condition for which recovery is sought. Consent was not reasonably possible by or on behalf of the patient. The practitioner, after considering all of the attendant facts and circumstances, used reasonable discretion as to the manner and extent as to which alternatives or risks should be disclosed to the patient because the practitioner reasonably believed that the manner and extent of such disclosure could reasonably be expected to adversely and substantially affect the patient's condition.
If patient consent is not obtained, what could be the result?
Could be considered Battery
Are they generally considered valid or invalid?
Exculpatory agreements in the medical setting are generally considered invalid.
Hospitals have an independent duty to obtain informed consent.
FALSE
What is statutory consent
Many states have adopted legislation concerning emergency care. An emergency in most states eliminates the need for consent. When a patient is clinically unable to give consent to a lifesaving emergency treatment, the law implies consent on the presumption that a reasonable person would consent to lifesaving medical intervention.
What are patient responsibilities?
Patients have responsibilities as well as rights. Contemporary Perspective Practice Healthy Lifestyle Maintain Current Medical Records Keep Appointments Provide Full Disclosure of Medical History Accurately Describe Symptoms Communicate Care Preferences Stay Informed Report Unexpected Changes in Health Status Adhere to the Agreed-Upon Treatment Plan Avoid Self-Administration of Medications Actively Participate in Care Comply with Hospital Policy Respect Understand that Medical Science Had Limits Ask Questions
what is required for informed consent?
Patients must be informed of the risks, benefits, and alternatives associated with recommended treatments. Where there are two or more medically acceptable treatment options, the competent patient has the absolute right to know about and select from the available treatment options after being informed of the risks, benefits, and alternatives of each.
Do competent patients have the right to refuse treatment?
Yes
Do people have the right to refuse treatment on religious grounds?
Yes
What is the objective standard?
a "reasonable person" would not have undergone the procedure if he or she had been properly informed. the finder of fact may take into account the characteristics of the plaintiff, including The plaintiff's idiosyncrasies, fears, age, medical condition, and religious beliefs.
What is patient consent and why is it important?
is the voluntary agreement by a person who possesses sufficient mental capacity to make an intelligent choice to allow a medical procedure and/or treatment proposed by another to be performed on himself or herself.
What are a patient's rights?
may be classified as either legal— those emanating from law— or human statements of desirable ethical principles, such as the right to be treated with dignity and respect.
what is judicial consent?
may be necessary in those instances where there is concern as to the absence or legality of consent. Judicial intervention is periodically necessary to grant consent on an emergency basis when a court is not in session. A judge should be contacted only after alternative methods have been exhausted and the matter cannot wait for a determination during the normal working hours of the court.
What are the rules concerning discharge orders?
must be provided to the patient prior to discharge from the hospital.
what is there purpose with regard to informed consent?
often necessary in those instances in which a patient is incapable of managing or administering his or her private affairs because of physical and/or mental disabilities or because he or she is under the age of majority.
What is informed consent predicated upon?
on the duty of the physician to disclose to the patient sufficient information to enable the patient to evaluate a proposed medical or surgical procedure before submitting to it.Informed consent requires that a patient have a full understanding of that to which he or she has consented. A physician's explanation of treatment options should take into consideration the patient's ability to understand the description of the risks of treatment and the probable consequences of each treatment.
What is the subjective standard?
the "individual patient" would have chosen the procedure if he or she had been fully informed. Relies solely on patient's testimony.
When a patient does not have capacity (is incompetent), who may provide informed consent for that person?
the legal guardian or next of kin should be obtained.
What duty does a nurse NOT have with regard to informed consent?
to advise a patient as to a particular procedure to be employed; advise the patient as to the risks, benefits, and alternatives to a recommended procedure; or obtain a patient's informed consent prior to surgery merely because the physician directed a nurse to have the patient sign a consent form.
What should informed consent include?
what a reasonable person would consider material to his or her decision of whether or not to undergo treatment. The needs of each patient can vary depending on age, maturity, and mental status
Who may consent?
when the patient is either physically unable or legally incompetent to consent and no emergency exists, consent must be obtained from a person who is empowered to consent on the patient's behalf. The person who authorizes treatment of another must have sufficient information to make an intelligent judgment on behalf of the patient.
What is implied (patient) consent? When does it occur?
will generally be presumed when immediate action is required to prevent death or permanent impairment of a patient's health. If it is impossible in an emergency to obtain the consent of the patient or someone legally authorized to give consent, the required procedure may be undertaken without liability for failure to procure consent. Unconscious patients are presumed under law to approve treatment that appears to be necessary. It is assumed that such patients would have consented if they were conscious and competent. However, if a conscious patient expressly refuses to consent to certain treatment, such treatment may not be instituted after the patient becomes unconscious. Similarly, conscious patients suffering from emergency conditions retain the right to refuse consent.