LEGAL IMPLICATIONS IN MEDICAL CARE
There are few aspects of medical administra-
tion or treatment that do not have some legal
implications. Every time a patient comes into
contact with a facility or its staff members, either
directly or indirectly, formally or informally, the
potential for legal entanglements exists.
Although the law has become more and more
involved in the operation of hospitals, the
exercise of common sense combined with a
knowledge of those situations that require special
care will protect the hospital and its staff
from most difficulties.
A brief description of the situations that
regularly arise and have legal consequences and
the policy and instructions which apply in those
situations follow. It is important to keep in mind
that the law is an inexact science, subject to widely
varying fact situations. The information in this
chapter cannot substitute for the advice of an
attorney. Hospital staff members are encouraged
to consult with the hospital or area Judge
Advocate General Corps (JAG) officers on issues
with which they are uncomfortable.
CONSENT REQUIREMENTS FOR
With limited exceptions, every person has the
right not to be touched without him or her
having first given permission. This right to be
touched only when and in the manner authorized
is the foundation of the requirement that consent
must be obtained before medical treatment is
initiated. Failure to obtain consent may result in
the health care provider being responsible for
an assault and battery upon the patient.
While the term consent in the medical
setting refers to a patients expressed or implied
agreement to submit to an examination or treat-
ment, the doctrine of informed consent
requires that the health care provider give the
patient all the information necessary for a
knowledgeable decision on the proposed pro-
cedure. When courts say that a patients consent
must be informed, they are saying that a patients
agreement to a medical procedure must be made
with full awareness of the consequences of the
agreement. If there is no such awareness, there
has been no lawful consent.
The duty to inform and explain rests with the
provider. This responsibility cannot be delegated.
The provider must describe the proposed
procedure in lay terms so that the patient
understands the nature of what is proposed. The
risks of the treatment must be explained. If there
are any alternative medical options, they should
be disclosed and discussed.
For common medical procedures that are
considered to be simple and essentially risk free,
a provider is not required to explain consequences
that are generally understood to be remote. A
determination of what is simple and common
should be made from the perspective of
appropriate medical standards. Where the harm
that could result is serious or the risk of
harm is high, the duty to disclose is greater.
Methods should be developed within each
hospital department to acquaint patients with the
benefits, risks, and alternatives to the proposed
treatment. In some departments, prepared
pamphlets or information sheets maybe desirable.
In others, oral communication may be the best
method. Some states, i.e., Texas have laws that
are very specific about what is required.
Consent prior to treatment is not necessary
when treatment appears to be immediately
required to prevent deterioration or aggravation
of a patients condition, especially in life
threatening situations, and it is not possible
to obtain a valid consent from the patient or a
person authorized to consent for the patient.