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Archive for December, 2009



The Reasonable Physician Standard









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.

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.

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