Research Paper on "Healthcare Legal Issues: Care"

Research Paper 16 pages (4675 words) Sources: 1+

[EXCERPT] . . . .

Under such circumstances, doctors generally have patients sign waivers giving up their rights to full disclosures. If the patient had prior knowledge of the risks (having undergone the surgery or procedure previously), or if the risks are common knowledge (such as pain following suturing a wound), there is generally no duty to repeat or expressly inform of these risks.

Measuring the Duty to Inform

The professional standard (for judging the scope of a doctor's duty to disclose) is alternately referred to as the community standard, the professional community standard, or the reasonable physician standard (Davis, 2002). It generally asks what would a reasonably prudent physician with the same background, training, experience, and practicing in the same community, have disclosed to a patient in the same or similar situation? This standard is the same as that applied to other forms of alleged medical malpractice. A significant number of states have employed the use of a standard commonly referred to as the materiality standard. It is alternately referred to as the reasonable patient standard, or the prudent patient standard. It purports to ask what would a reasonable patient in the same or similar situation need to know in order to make an appropriate decision regarding a proposed surgery, treatment, or procedure? In other words, what information would be material to the patient's decision? Still other jurisdictions have developed a subjective patient standard which asks what that particular patient, in his or her own unique set of circumstances and conditions, would need to know, but this has proven to be a hard standard to establish.

State Law Provisions Regarding Disclosure Requirements

States are divided in their approach as to how much information a doctor must disclose to a patient in order to facilitate an "informed consent" to the proposed surgery, treatment, or procedure (U.S. Legal, 2010):

ALASKA: Alaska has adopted a reasonable patient (materiality) standard (Alaska Stat. Ann. 09.55.556(a) but articulates four specific defenses that may be raised on the part of the physician.

ARKANSAS: Arkansas Stat. Ann. 16-114-206(b) provides that "the plaintiff shall have the burden of proving... that the medical care provider did not supply that type of information regarding the treatment, procedure, or surgery as would customarily have been given to a patient... By other medical care providers with similar training and experience."

CALIFORNIA: California generally applies the professional community standard, as developed by CASE LAW. Cobbs v. Grant, 8 Cal 3d 229 (1972).

DELAWARE: Delaware applies the professional community standard. Del. Code Ann. Title 18-6852.

FLORIDA: Florida Statute Section 766.103 expressly adopts the professional community standard, providing that actions are barred if "the action of the [physician] in obtaining the consent of the patient... was in accordance with an accepted standard of medical practice among members of the medical profession with similar training and experience in the same or similar medical community."

GEORGIA: Georgia Code Ann. 31-9-6.1 follows a professional community standard but requires that the harm caused from the alleged failures to disclose be associated with "the material risks generally recognized and accepted by the reasonably prudent physician."

HAWAII: Hawaii Rev. Stat. 671-3(a) establishes a board of medical examiners to develop standards ensuring that a "patient's consent to treatment is an informed consent." It further provides that the standards may be ADMISSIBLE in court as evidence of the standard of care required of health care providers.

IDAHO: Idaho Code Section 39-4301 et seq., specifically 39-4304, expressly adopts the objective professional community standard.

ILLINOIS: The state of Illinois has adopted the objective professional community standard (Ill. Ann. Stat. Chapter 110, 2-622) and requires that the alleged breach of duty be reviewed and substantiated by a physician reviewing the case (medical expert) before filing a complaint.

INDIANA: Indiana Code Ann. 16-9.5.1 adopts a reasonably prudent patient or "materiality" standard, requiring a disclosure of "material risks."

IOWA: Iowa Code Ann. 147.137 follows an objective professional community standard and further requires that the information disclosed include a detailed list of potential outcomes.

KENTUCKY: Kentucky Revised Statutes (KRS) 304.40-320 adopts the objective professional community standard.

LOUISIANA: Louisiana Rev. Stat. Title 40, Section 1299.40, and 1299.50 (Louisiana Medical Consent Law) raise a presumption of informed consent if information is provided in writing and sets forth certain factors (consistent with general requirements of informed consent).

MAINE: Maine Rev. Stats. Ann., Title 24-2905 adopts the professional community standard.

Massachusetts: Massachusetts recognizes IMPLIED CONSENT as developed by case law. It generally follows the "materiality" standard, i.e., a doctor must disclose that information which the doctor should reasonably recognize as material to the patient's decision. Halley v. Birbiglia, 458 N.E.2d 710 (1983).

MICHIGAN: Michigan recognizes implied consent as developed by case law. It generally applies the professional standard. Michigan also treats, as an ASSAULT AND BATTERY, any physical contact with a patient that exceeds the scope of the granted consent. Patient consent may be expressed or implied. Werth v. Taylor, 190 Mich App 141 (1991).

MISSOURI: Missouri recognizes implied consent as developed by case law. It generally follows the professional standard, i.e., that of a reasonably prudent provider (of medical care or treatment) in the medical community. Baltzell v. VanBuskirk, 752 S.W.2d 902 (Mo. App. 1988).

NEBRASKA: Nebraska Revised Statutes, Section 44-2816 adopts the objective professional community standard.

NEW HAMPSHIRE: N.H. Rev. Stat. Ann. 507-C:2 adopts the objective professional community standard.

NEW YORK: NY Public Health Laws, Section 2805-d, applies the professional community standard and specifically provides that "[l]ack of informed consent means the failure... To disclose to the patient such alternatives... And the reasonably foreseeable risks and benefits involved as a reasonable medical... practitioner under similar circumstances."

NORTH CAROLINA: North Carolina General Statute 90-21.13(a)(3) applies an objective professional community standard to a physician's duty to inform.

OHIO: The Ohio Revised Code, Section 2317.54 adopts a reasonably prudent patient or materiality standard, expressly requiring the disclosure of "reasonably known risks."

OREGON: Oregon Rev. Stat. 677.097 adopts the reasonably prudent patient or materiality standard and requires a disclosure "in substantial detail."

PENNSYLVANIA: Pa. Stat. Ann. Title 40-1301.103 adopts the "materiality" standard.

TENNESSEE: Tennessee has adopted an objective professional community standard. Tenn. Code. Ann. 29-26-118.

TEXAS: Texas Code Ann. Article 4590i-6.02 adopts the "materiality" standard. Texas law has created the Texas Medical Disclosure Panel, comprised of three attorneys and six physicians, to establish "the degree of disclosure required and the form in which the disclosure will be made."

UTAH: Utah Code Ann. 78-14-5(f) follows an objective reasonably prudent patient standard, i.e., "reasonably prudent person in the patient's position."

VERMONT: Vermont Stat. Ann. Title 12-1909 adopts the objective professional community standard, requiring that the information disclosed be provided in a manner that allows a reasonably prudent patient to "make a knowledgeable evaluation."

WASHINGTON: Washington has adopted the reasonably prudent patient or "materiality" standard under Wash Rev. Code Ann. 7.70.050.

WEST VIRGINIA: West Virginia has abrogated the professional community standard and adopted a materiality standard. W. Va. Stat 55-7B-3

General Consent

In general, for most medical procedures, the parent or legal guardian of the minor still has to grant consent in order for the procedure to be performed. While the state can challenge a parent's decision to refuse medically necessary treatment and can in some cases win the authority to make medical decisions on behalf of the child, the minor can not make his or her own medical decisions. This general rule is virtually always the case regarding any sort of medical treatment before the minor enters their teenage year so state or court has ever authorized minors younger than 12 to make any sort of medical decision for themselves. However, after the minor becomes a teenager, states begin to digress in terms of the responsibility the minor can take for medical decisions. Exceptions have been carved out for various medical procedures that allow teenage minors to have final say in their medical care.

Family Planning

Twenty-five states and the District of Columbia have laws that explicitly give minors the authority to consent to contraceptive services, and twenty-seven states and the District of Columbia specifically allow pregnant minors to the obtain prenatal care and delivery services without parental consent or notification (Elsevier, 2003). The Title X federal family planning program, which supports clinics that provide contraceptive service and other reproductive health care to minors on a confidential basis and without the need for parental consent or notification, has seen efforts made by Congress to require consent or notification before a minor receives these services. All of these efforts, the most recent in 1998, have failed.

Probably the most controversial area of family planning and minors is abortion. Two states Connecticut and Maine, as well as the District of Columbia have laws that give minors the right to obtain abortions on their own. In contrast, 31 states currently have laws restricting minors' rights to obtain abortions by either requiring them to obtain the permission of one or both parents, or to notify one or both of them of the procedure. The rest of the states… READ MORE

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