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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.
4.

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.

Before you decide whether you have a legitimate complaint for lack of informed consent, let us look at some of the ways you can consent to a doctor’s treatment and some of the ways a doctor can treat a patient without that person’s formal consent.

Implied Consent

This is consent implied by your actions. The very act of walking into a doctor’s office, or a hospital ER, or voluntarily submitting to treatment is a valid consent. If you go into a doctor’s office with a boil on your neck and do not object when he lances it, you have consented. A Mississippi mother sued her local school board, because her child developed a severe reaction to an inoculation that was given to the child at the school clinic. She complained the shot had been given without her consent. The court held that she had given her implied consent by allowing the child to be sent to the clinic.

Verbal Consent

Any time you solicit a doctor’s opinion, advice, or treatment you have consented. It does not matter whether it is in his office, or a hospital, or on a street corner. This applies to simple everyday treatments and office visits, which are easily understood by the average person. It does not cover more complicated procedures, especially surgery.

A South Carolina woman requested a dermatologist to remove a blemish from her face by freezing it with carbon dioxide. The doctor warned her that it might leave a permanent depigmentation (white spot) and even with that knowledge, she agreed. It did and she sued the doctor for medical malpractice, because she had not signed a consent. The court held that her verbal consent was binding, because it was a simple procedure which anyone could understand.

Written Consent

Most medical malpractice lawsuits for lack of informed consent involve written consents. Theoretically, a doctor can do the most complicated and dangerous treatment with only your verbal consent. However, no doctor in his right mind would do such a thing. If the treatment is complicated, dangerous, or involves anesthesia and surgery, a prudent doctor or hospital will obtain a written consent from the patient. This type of consent is valid and binding on the patient, provided it is Fully Informed, meaning that you understood what you are agreeing to.

Consent by Proxy

This is when someone else consents to your treatment on your behalf. The obvious case is a parent consenting to surgery on a child. What if your father is unconscious from a fractured skull and needs immediate brain surgery? Can you give a legally-binding consent? No. In that situation, the doctors have to make the decision and do what they assume the patient would have consented to, if able. Only a spouse, legal guardian, or healthcare power of attorney of a patient can give a proxy consent for someone else.

That does two things. First, it means the doctors cannot pass the buck to you. They are the experts. They are responsible for the technical decisions and must do what they know is best. Second, they cannot do anything to an unconscious patient they know the patient would not have agreed to. For example, they cannot give a blood transfusion to a Jehovah’s Witness or do a hysterectomy on a young, unmarried female.

A teenage girl, who was visiting her aunt in Boston, decided to go to a doctor and have warts removed from her face. Both she and her aunt signed the consent for treatment, which scarred the girl’s face. She sued the doctor for medical malpractice and won. The court held that she could not consent, because she was underage; the aunt was not her legal guardian, and there was no emergency. Therefore, the consent was not legally binding on the girl or her parents.

However, this type of complaint may be difficult to win. It is based on the traditional legal theory that a minor cannot enter into a contract. In recent years, that rule has been seriously undermined by laws permitting teenagers to undergo abortions without their parents knowledge or consent. While the law still requires minors to obtain parental consent for other forms of treatment, the courts are more reluctant to enforce the rule. It does not make sense to permit a doctor to do an operation like an abortion, with only the teenager’s consent, but penalize him for doing trivial procedures, like removing a wart, with the same consent.

The child of two Jehovah’s Witnesses was admitted to a hospital in Maine following an auto accident. A blood transfusion was urgently required to save the child’s life, but the parents refused to consent on religious grounds. No one else could do it. So, the hospital administrator went to a local judge, who appointed the administrator and the doctor in charge of the case as temporary legal guardians. That gave them legal authority to order the transfusions, and the child’s life was saved. When he was out of danger, the judge returned the child to the custody of its parents. How did the parents feel when it was all over? They were happy and grateful their child’s life had been saved without having to violate their religious beliefs.

The Rule Is: There are a number of ways you can consent to treatment for yourself or a member of your family. However, the important points to remember are:

1. A consent only covers your specific illness and the immediate treatment agreed upon between you and the doctor. It does not cover any other disease condition the doctor may find, unless it says so in the consent form.

2. It is not transferable. It only applies to the doctor and the patient named in the consent. If you consent to surgery by one doctor, they cannot switch doctors. That is abandonment. If you consent to have one child’s tonsils out, they cannot do the other child. That is a battery.

3. Consent cannot be given by a family member, even if the patient is unconscious, unless the family member is a spouse, the legal guardian, or has healthcare power of attorney. If the patient cannot consent for some reason, the doctors will obtain a consent from the closest relative available. But, it is not legally binding on the patient. In that situation, the doctors must make the decisions themselves.

     
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