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Lawyers call this the Lay Standard, because it is based on what a layman (the patient) understands and not what a professional thinks she needs to understand.  The Reasonable Patient Standard simply says the doctor has to disclose all information which would influence you, or any other reasonable person, in deciding whether or not to go ahead.  This is a lot easier for you, because you do not need a doctor to testify to what is reasonable.  If you would have acted differently, had you known all the facts, then it is not an informed consent.  Put another way, the doctor has to disclose all material risks.  A material risk is one that the average person would take into consideration in making a decision.  And, like the reasonable physician standard, the doctor must also tell you of alternative courses of treatment and what can happen if you refuse treatment.  The reasonable patient standard is better for you, because you do not have to bring in an expert, and the doctor cannot defend himself by saying he told you what one of his colleagues would have told you.

How much a doctor has to tell you varies from state to state.  Some states have the Therapeutic Privilege; some do not.  Some give doctors a free hand in treating life-threatening emergencies.  Only your lawyer can tell you for sure whether the information your doctor gave you satisfied the law in your state.

The first time the reasonable patient standard was used by a court was in Washington, D.C., and it is a famous case.  A neurosurgeon did a laminectomy (a spinal operation) on a 19 year-old girl, who complained of some back pain.  He did not warn her about the possible complications, especially the 1% chance that the operation could leave her paralyzed for life, which it did.  The doctor said he had complied with the law by telling her as much as he thought she needed to know, which was not much.  But, the court said he failed to give her enough information to allow her to make an informed decision.  She would not have risked even a 1% chance of paralysis just to get rid of a backache that could have been treated safely by conservative means.  Since that time, more and more states have adopted the reasonable patient (lay) standard.

An Oklahoma woman was advised to have a routine Pap smear for cancer of the uterus; however, she did not follow-up, and the doctor said nothing more about it.  She did not have the test.  She later developed incurable cancer and sued the doctor for failure to warn her.  At that time, Oklahoma used the reasonable patient (lay) standard, and the court found the doctor was negligent, because he had failed to advise her of all the material risks of her refusal.  The ease and simplicity of the test, and the serious risk of death from cancer, made a warning and follow-up mandatory.

Unusual or Experimental Treatments

All unusual or experimental treatments come under the reasonable patient standard in almost every state.  The doctor must tell you everything that is known about it, including the most remote possibilities of any bad reaction, before subjecting you to anything that is not approved by the federal government or generally accepted by the medical profession.  This is true also of treatments like sterilization or x-ray therapy, which can have permanent effects on your life or cause serious complications years later.

In the 1950’s a sleeping pill called Thalidomide was developed in Germany.  It was never approved by the U.S. Food and Drug Administration, but some doctors brought it into the country and gave it to their patients.  It was later discovered that if taken by pregnant women, it caused children to be born without arms and legs.  Many lawsuits resulted with significant damages awarded.  In all of the cases, the doctors, who had given the drug, were held to the reasonable patient (lay) standard in failing to warn that it was an experimental drug.

Who is Responsible for Informing You?

If you file a medical malpractice lawsuit and complain that you did not sign an informed consent, you may find yourself getting a “fast shuffle” with the doctors, the residents, and the hospital, each blaming someone else.  The rule is that each doctor is personally responsible for informing you about what he is going to do and obtaining your informed consent.  He does not have to do it himself, but if he sends a resident or a nurse or anyone else, he is still responsible for what that person tells you.

If the doctor obtains your consent himself, he should sign it himself.  If someone else does it for him, he accepts responsibility when he countersigns it.  If he does not, both he and the person who obtained it are responsible.  If that person is a hospital employee, the hospital is also responsible.

The Rule Is:
The doctor who actually works on you is ultimately responsible for telling you what he is going to do and obtaining your informed consent, regardless of who actually gets it.

Which Standard Applies in Your State?

The laws in all states are complicated, and there are many exceptions to the general rules.  Only your lawyer can give you a reliable opinion as to which standard applies in your case.

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.
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.

A mugger sticks a knife in you and kills you or leaves you maimed for life. A surgeon sticks a knife in you, and kills you or leaves you maimed for life. What is the difference between the two? The mugger will go to jail and the surgeon will not.

Why? Because you consented: you signed a consent form and gave the surgeon permission to stick the knife in you.

What if you did not consent? What if you were in an auto accident and unconscious, or the patient was a child who could not understand what was going on, or the doctor did something against your will? Do you have a valid complaint? It all depends on the circumstances.

Under normal circumstances, a doctor who does something to a patient without consent commits what lawyers call a Battery, which is when someone actually touches you without your consent and does you some harm. It is different from an Assault, which means putting you in fear of imminent injury. Angry words do not constitute an assault, unless you have good reason to fear that violence is about to follow. It is important to remember the difference when you are thinking about whether you have a valid complaint for lack of consent.

A Maryland ENT specialist obtained a consent form to operate on a patient’s right ear. By mistake, he operated on the left ear. He claimed there was no harm, since he had done a good operation on the left ear, which was also diseased and would eventually have required surgery. But, the court held that no matter how skillfully he had operated, he had committed a battery, because he did not have permission to operate on the left ear. He was guilty of medical malpractice, because he negligently failed to check and make sure he was operating on the correct ear.

A Missouri plastic surgeon, who was confronted by an angry and dissatisfied patient, pulled out a can of mace and sprayed the patient in the face. Spraying mace in the patient’s face was a battery. It got into the patient’s eyes, nose, and mouth and did a lot of harm. If the doctor had just threatened him with the can, so he was afraid he would be injured but had not actually sprayed him, that would have been an assault. Actually, it was both assault and battery, because the outraged patient was put in fear as soon as he saw the can of mace coming at him, as well as being injured. The doctor’s action was worse than medical malpractice. It was a crime, and the doctor lost his license to practice medicine.

That case was unusual. Many medical malpractice cases involve battery, but it is what lawyers call Inadvertent Battery; the result of carelessness or an honest mistake. The doctor operates on the wrong eye, or a nurse gives an injection to the wrong patient. They do not mean harm, but it is medical malpractice all the same. The doctor who operated on the wrong ear certainly did not intend to harm his patient. In fact, he did a first-class operation, but he made a careless mistake.

The courts treat inadvertent battery as plain malpractice or even a slip of the wrist accident. They are not willing to penalize a doctor for a mistake that could happen to anyone and may dismiss such a complaint or give a small award. However, if a doctor deliberately does anything to harm his patient’s physical or emotional well-being, without the patient’s consent, that is what is known as a Battery with Malicious Intent.

A Long Island dentist was found guilty of having had sex with his patients while they were asleep under anesthetic. That was battery with malicious intent. A psychiatrist in a VA hospital gave a patient a potent, mind-altering drug used only on animals as an experiment and without his knowledge or consent. The patient went crazy and committed suicide. The jury found the doctor guilty of battery with malicious intent and assessed heavy damages that he had to pay out of his own pocket.

The Rule Is:
If you have been the victim of battery with malicious intent, it means the doctor is under tremendous pressure to settle.

     
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