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Archive for December, 2009

Does he have to tell you everything he is going to do? Go through the surgical operation step-by-step? Warn you about every possible complication? Discuss all possible alternative treatments, even if they are hardly ever used? What if the chance

of a certain complication is one in a million? What if it is one in ten? How about a 50-50 chance? It varies in different states, and the laws are complex. However, almost all states adhere to one of two standards in deciding what a doctor has to tell you in order to obtain a valid, informed consent. They are the reasonable physician standard and the reasonable patient standard.

The Reasonable Physician Standard

Lawyers call this the professional standard. But, the reasonable physician standard explains it better. It is the law in most states. It says that a doctor has to tell you as much as a prudent and reasonable doctor would, under the same conditions. In other words, he has to tell you as much as he thinks you need to know. This leaves a lot to the doctor’s discretion. If you want to charge that the doctor did not obtain a valid, informed consent, you have to call in another doctor as an medical expert witness to testify that a reasonable doctor would have given you more information.

How much does the doctor have to tell you in a professional standard state? Here are some of the things he has to tell you and some he does not:
1. He must warn you about any substantial risk of injury and tell you about possible alternatives that do not carry the same degree of risk.

2. He must also warn you about common complications and risks, even if the potential injury is slight. But, he only has to warn you about unusual or rare complications, if they are serious or dangerous.

3. He does not have to warn you about risks that are common knowledge or already known to you.

4. He does not have to tell you about alternative treatments that are experimental or ones that have been discarded by the medical profession.

5. He does not have to warn you about risks that are uncommon or rare, if they are not serious.

6. He does not have to warn you about any risk if he believes it would frighten you unduly and cause you to refuse necessary or life-saving treatment. This is called the Therapeutic Privilege. It is not justified just because the doctor thinks you might refuse beneficial treatment, and it only applies when there is a life-threatening risk if treatment is refused, or when safer or more conservative treatment has reached the point of no-return.

In a Hawaii case, the doctors suspected a patient had an aneurysm of an artery in the brain, which could burst and kill him. Before doing neurosurgery to clip off the aneurysm, it was necessary to perform a hazardous diagnostic test to confirm its presence and pinpoint the location. The doctors did not tell the patient about the danger of the test, because they were afraid he would refuse and suffer a fatal brain hemorrhage. The test left the patient paralyzed, and the patient sued, because he had not been warned of the risk. But, the court held they were justified because of the therapeutic privilege. The risk of death from brain hemorrhage outweighed the risk of paralysis from the test.

To work on a patient without anybody’s consent, a doctor must comply with four requirements:

1. The patient is in dire danger.
2. The patient is unable to consent.
3. If the patient is a child, a parent or guardian is not readily available.

It can be reasonably assumed that the patient would consent if able.

This situation usually arises in medical emergencies, such as cardiac arrest in a hospital or unconscious patients brought to the ER by ambulance. The important thing to remember is that a relative cannot legally consent on your behalf if you are unconscious, unless the family member is a spouse, the legal guardian, or has healthcare power of attorney. The surgeon must make the decision to render a certain treatment or extend the scope of a surgical operation himself. However, most doctors will attempt to obtain a consent from the nearest relative, just to make it more palatable, and that does carry some weight with jurors even though, technically, it is not legally binding.

The Good Samaritan laws create a special situation. Some years ago, doctors driving by in their cars were afraid to stop and help accident victims. The doctors could not do a good job, because they usually did not have medical equipment with them. Ungrateful people took advantage of that to sue for substandard care. So, doctors would just drive past the scene of an accident and leave it to the ambulance crew that was properly equipped. Needless to say, some of the victims died.

Today, most states have Good Samaritan laws that protect a doctor from being sued, if he tries to help an accident victim. In some states, a doctor is required by law to stop and offer assistance, if he arrives at the scene of an accident. So, no matter how bad the results, you cannot sue a doctor for a Good Samaritan treatment unless you can show that he was grossly negligent.

Informed Consent

This is important, because it comes into a lot of cases. Many years ago the U.S. Supreme Court said that: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” Today, that rule applies more than ever. Unless you are unconscious or mentally incompetent, or a child, a doctor must obtain your consent to anything he proposes to do to you. And, for anything important, it has to be written consent.

But, a consent is no good, if you do not understand what it is all about. If you are going to “determine what shall be done with you own body”, as the Supreme Court said, you have to know what the doctor proposes to do with your own body. It sounds logical. It is. Furthermore, it is the law. So, before doing anything to you, the doctor or the hospital has to obtain what is called Informed Consent. He has to give you full and understandable information about:

1. What he is gong to do.
2. The ordinary risks and complications, no matter how slight.
3. The unusual risks and complications, if they are dangerous.
4. What alternative treatments are available.

Strange as it may seem, a lot of doctors do not bother to obtain an informed consent for even the most dangerous or complicated treatments. At most, a hospital admitting clerk with no medical background will have the patient sign a blank consent form to be filled in later by a doctor or a nurse.

Have you ever gone into a hospital and been asked to sign a lot of papers in the admitting office? Did the person who had you sign them say: “This is a consent to treatment, and before you sign, I am going to explain exactly what it is all about”? Of course not. She was a clerk and probably did not know any more about medicine or your condition than you do. Then, the form was filled in by a nurse or resident and your doctor came around the next morning and filled in the blanks on the form you had signed when it was on your chart. But that was after you had signed it. Even if he took the trouble to sit down with you for an hour and explained it all, the consent was invalid, because it stated falsely that you had been fully informed at the time you signed it.

Or, your relative does not speak or read English, and the night before surgery, a nurse comes into her room and has her sign a consent. Is that valid? Not unless the nurse can prove she is fluent in the patient’s language, and the consent form is printed in that language.

A visitor to Atlantic City was taken to a hospital with a serious leg injury, and the doctors decided that it would be best to amputate. The surgical resident explained the operation in detail and got what he thought was an informed consent from the patient. The patient later sued, because he had not consented. The resident testified he had explained the need for amputation and the possible alternatives and consequences in great detail. But, the legless patient was able to show he only understood German, and the resident admitted he spoke only English. The resident could have explained the operation until he was blue in the face, and it would not have done any good, because the patient did not understand English.

The Rule Is: The person who signs the consent form must understand what it is all about, at the time he or she signs.

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