April 2001 Newsletter

Patient Selection and Abandonment
Consent Issues
Comments

Patient Selection and Abandonment

In order to abandon a patient and be liable for any harm that causes, there needs to be a physician-patient relationship. A physician has the right to accept or deny medical care to any patient. The only reasons one may not deny treatment to a patient is if the reason is discriminatory or the physician is bound to see the patient by contract. The tensions here are the definitions of discrimination and contract. Obviously, one may not refuse to treat a patient on the basis of sex, race, disability or religion.

There is no law that states you must take a patient on Medicare or Medicaid even if you have others with that insurance in your practice. There is no law that states you must take a patient in your office referred for follow-up from your hospitalís emergency room. However, this may be part of a contract between you and your hospital either directly or indirectly as part of the agreed to by-laws. If you agree to see the patient in follow-up the patient may have a reasonable expectation that there will be a physician-patient relationship on a continuing basis.

A physician-patient relationship has been established when a patient reasonably believes that physician will provide medical care. This could be with a telephone call where the physician agrees to see and treat the patient or when the patient comes into the examining room. It may also be when the patient signs up for a managed care plan and chooses a primary care physician. Recently a court has held that a physician socially visiting a patient in the hospital emergency room while the emergency physician was seeing the patient may have had a duty to the patient. The patient stated that she had called the physicianís office earlier in the day and the office personnel had told her the physician would meet her at the hospital emergency room.

However, if the patient is being seen for an employer and the patient has no reason to believe that the physician was acting primarily for the patientís benefit, then no relationship may have been established.

Once there is a physician-patient relationship it is incumbent on the physician to provide those services that are agreed to. These may be limited by the physicianís specialty. The patient may reasonably believe that the care will continue, unless told that the length of time is limited, as in a one-time consultation for a specific reason.

Either party may terminate the physician-patient relationship. If the patient decides to break off the relationship, no formal notice is required. The same is not true if the physician breaks the relationship. It is recommended that if a physician who for whatever reason no longer wishes to see a patient and there is no emergency condition give the patient written notice of the termination, preferably with a certified letter with a return receipt and a first class letter as well. A copy of the letter and return receipt should be kept in the patientís chart. The letter should also state that the physician will continue treatment for a reasonable time to allow the patient to find another physician to care for the patient. The physician does not need to find another physician for the patient but it is nice to at least give the phone number of the local medical society where the patient may find another physician. The physician may, but does not need to, in the patient letter enumerate the reasons for termination of the relationship. The letter should be straightforward and not antagonistic. However, the reason should be documented in the patient record. Also if the patient discharges the physician a note should be made in the chart.

One must be especially careful in discharging a patient if you are a rural provider and/or there are no other needed physicians to care for the patient. If the physician has a contract with a managed care organization to see itís patients and wants to discharge one of the organizationís patients, the physician should tell the organization prior to the patientís discharge. This is to allow the organization time to find another physician for the patient.

Consent to Medical treatment

Justice Cardozo in Schloendorff v Socíy of New York Hosp. stated that "every human being of adult years has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patientís consent commits an assault for which he is liable in damages." This led to concept of general consent for medical procedures. Then in1972 in the landmark California case Cobbs v. Grant the court stated physicians need to obtain informed consent from patients. Consent may be explicit or implied, regular or informed and come up every day and with every patient. This includes the right to agree or not agree to any medical treatment. This also means that patients are entitled to enough information so they may make an informed decision.

Consent is important in the medical legal arena. If a physician treats a patient, absent an excuse, without consent they are committing a battery, an unconsented to touching. A battery is an intentional tort (wrongdoing) and does not need an expert witnesses to prove, nor is it covered under tort reform (MICRA) and may be, depending on the state, a prelude to punitive damages. This includes doing something more or different than allowed by the consent unless waiting would allow the patient to be harmed. Some examples are allowing the resident to perform a surgery when the patient thought the attending would do so or operating on the wrong body part. In California, when punitive damages are requested, the Central Pathology v. Superior Court case states that the injury by a health care provider providing professional services arises out of professional negligence and is subject to MICRA and itís monetary caps. This may not be true in other states.

If the physician obtains consent, but without sufficient information for an informed consent, then there is basically no consent and the patient may sue. There is no requirement to show that the treatment was performed wrongly. The patient in California and some other states would only need to show that a reasonable person in the patientís position would not have consented to the treatment had they known all the facts and that the treatment caused the patientís injury.

In some other states the theory of informed consent may be whether the physician gave the same amount of information as other physicianís similarly situated would have given, the reasonable physician standard. This requires an expert witness to determine the community standard. Georgia recently changed their standard from the reasonable physician to the reasonable patient standard.

One does not need to give informed consent to simple treatments that have only remote risks such as a routine exam or a routine blood draw. If the treatments are complex and informed consent is not obtained for each procedure, there is a legal risk. One can not threaten a patient to get consent. The consent may be withdrawn any time prior to the procedure. The physician should respect the decision of the patient. If the patient requests an alternative therapy that is against the physicianís ethical or moral beliefs, the physician should withdraw from the care and assist the patient in finding a physician that would help the patient in his/her wishes.

Informed consent consists of giving the patient enough information to make the decision informed. This includes the pros, cons, alternatives and usual complications of the treatment with emphasis on known risks of death or serious bodily harm. There is no California case stating whether or not the physician has a duty to inform a patient about the physicianís physical or mental state, experience or complication rate of a procedure. However, if asked one must be truthful.

The opposite of informed consent, informed refusal is true if a patient refuses a recommended treatment such as a Pap smear. Here, one should inform the patient  of the risks of not having the test.

Exceptions to Consent

There are three areas in which consent is not needed. The first is in emergency situations defined as those conditions that require "alleviation of severe pain, or immediate diagnosis and treatment of unforeseeable medical conditions, which, if not immediately treated, would lead to serious disability or death". (B&P 2397) Here the consent is implied only for the time frame of the emergency.

The second exception is if the patient requests not being told. This is true only for the patient or their authorized designee but not for the family requesting the patient not to be told.

The third and last exception is the therapeutic privilege. This means where the physician can prove that at that time it was reasonable to believe the disclosure would seriously upset the patient so that the patient could not objectively weigh the information to give an objective response. This is a rare occurrence.

Who Can Consent

Consent needs to be voluntary and by the person with the decision making authority. Competency is a legal term and all adult patients are deemed to be competent to give or not give consent unless proven otherwise. The physicianís test of decision-making capability is whether the patient understands the nature and consequences of their medical condition and the proposed treatment and can communicate the decision. This definition does not include the family or physicianís wishes regarding the procedure. These are important to the patient but not to the final decision by the patient after hearing these family concerns.

The lack of competency may be temporary such as after having medication that would dull the senses. In that case the physician should wait if possible, for the patient to regain their decision-making capacity.

If the patient is permanently unable to give a decision and has no written health care designee or conservator the California courts have stated in dicta, not a holding, that the closest available family member or possibly a significant other may give consent. The physician may pick which of the available members may be the designated by a showing of who has shown the most concern for the patient and are the most familiar with the patientís wishes. If the patient is not able to give consent and has an advance directive it should be followed, including whom is the designated consent giver.

Minors may not give consent and unless it is an emergency parental consent is necessary prior to treatment. The California exceptions are for emancipated minors defined as those who are married, in the armed services, emancipated by court order or minors fifteen years of age or older living away from home and handling their own finances. Also, depending on the state, parental consent is not necessary for contraception, any communicable disease therapy, sexually transmitted disease therapy, care or therapy relating to rape or sexual assault, pregnancy related services, mental health therapy, drug or alcohol abuse therapy, HIV testing or therapeutic abortion. It would behoove the physician to discuss the payment for these services with the minor. It is possible that filing an insurance claim with the parentís insurer may be a breach of confidentiality, a separate tort.

Evidence of Consent

Consent may be oral, written, or implied. All are valid and should be evidenced in the medical record. An example of an implied consent is when the patient holds out his/her arm for the blood draw.

Hospital Consent Forms.

It is the duty of the physician not the nurse to obtain informed consent. Hospitals usually do not have a duty to obtain informed consent for a procedure unless the physician is controlled by the hospital. Hospital informed consent forms should state that the physician has obtained informed consent and this form only confirms that fact. Hospitals usually have in their admission forms consent to the usual touching of the patient by the hospital staff.

The physician does not have to use a special form for most consents but only note in the patientís office or hospital medical record that informed consent was obtained and what that information consisted of. There are two schools of thought. One states the physician should only write in the record the broad terms. The second school states the physician should enumerate in detail all the things told the patient. I believe in the first school. There are state exceptions to this broad rule. In California, special forms must be used for breast cancer treatment, prostate cancer treatment or sterilization, including hysterectomy.

Comments

I hope you find these quarterly newsletters helpful and use them to stimulate discussion among your medical staffs. To those medical staffs that are receiving this newsletter by "snail mail" I encourage you to call, write or E-mail me with your E-mail address for faster, more efficient and cheaper service. Also, I wish to remind you again the AMA has strongly recommended medical staffs engage independent legal representation when the potential for conflict of interest between the medical staff and the hospital exists. This is especially true for those in systems. Lastly, I invite you to go to my web site www.medicalaw.net to sign up for notification of my twice a month updates in the legislative, legal and medical news areas.

As baseball season nears always remember the words of the immortal Yogi Berra "Thereís no stopping the future."

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DISCLAIMER: Although this article is updated periodically, it reflects the author's point of view at the time of publication. Nothing in this article constitutes legal advice. Readers should consult with their own legal counsel before acting on any of the information presented.