There are few aspects of medical administration 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.
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 treatment, 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 procedure. 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. 14-1