Weiss: Informed consent- statutes and caselaw

Clinical Pearls (note: MD law is the focus)

• General consent: signed on arrival to the hospital that allows things that are “standard, routine, and non-invasive”
  • Specified consent is needed for everything else
  • Caveat: exception is emergency consent that allows life saving procedures
• Right to refuse: Cruzan Case on medical consent ruled by the Supreme Court
  • “Patient’s have a liberty interest in refusing medical care”
    • exceptions: suicidal or incompetent individuals
    • Should transfer care if the patient does not agree with your care plan
• Consent
  • Sard v. Hardy: modern consent theory
    • Pregnant patient, C-section performed, BTL performed with consent, the patient became pregnant, sued for “improper consent“
    • NOW: must inform patients and disclose all material risks (significant risks) for proper consent
      • Must disclose information that a “reasonable” person would want to know
  • Dingle v. Berlin: who should consent?
    • Lap-chole, consent by attending, resident performed the surgery, pt sued after a complication as she was not told that the resident would do the majority of the work
      • The senior individual should do the consent with a note defining who will primarily do the procedure
  • McQuitty v. Spangler: how long does consent last?
    • High risk pregnancy, hospitalized for one month, physician wanted to keep pt until baby was mature, admitted and consent was signed for future c-section, abruption, emergent c-section, baby born with CP, sued for improper consent
      • Ruled that consent must be renewed as the risk/benefit changes, BUT no definition on “how often”
• Surrogate decision making
  • Each state has a specific order of individuals who can give consent on behalf of a patient, you must cite with your state’s guidelines
    • Contact ethics committee or hospital counsel for guidance
• End of life 
  • Cruzan case
    • Substitute decision makers should have the power to make all decisions for patients, including end of life decisions
  • All patients should have advanced directives
    • Verbal or Written
    •  A patient can change their POA verbally or revoke their existing advanced directives, but a FULL note must be written
      • Must note mental status in detail and mention decision making capacity
  • An advanced directive can only direct withholding of “life saving treatment” if the patient is in a “terminal state” or in a “permanent vegetative state”
    • for a Vegetative state it takes two physicians, one must be an expert in cognitive disorders
  • MOLST forms
    • Pre-hospital order valid in Maryland, requires informed consent
    • Deals with futility law
• Futility
  • “Ineffective medical care” as determined by two physicians (licensed)
    • in an emergency department you only need one physician
    • Family must be informed, they do not have to agree
      • Not deemed “mercy killing”