When the Duty to Disclose Arises

Patients generally trust their doctors and other medical professionals. Patients provide medical professionals with detailed information regarding their identity, hereditary health history and current ongoing medical health conditions. However, what do medical health professionals tell their patients? Or, a better question might be, what is a medical professional required to tell their patients?

Informed Consent

Informed consent involves a medical professional making every effort to make certain that the patient understands the benefits, as well as the risks, associated with the treatment or procedure that is being recommended. Claims involving informed consent are usually accompanied by a medical malpractice claim, or claims that, after a recommended treatment or procedure,the patient experienced unanticipated side effects or complications.

Informed consent includes two important elements. First, a patient has the right to decide what happens to his or her body. Second, a medical professional has a duty to provide the patient with enough information to make a decision that is educated in regards to whether or not they want to follow the medical professional's recommendation for treatment.

After the medical professional spells out the benefits and risks, it is the patient who must then provide consent before the treatment or procedure may begin. This process helps quell concern that the medical professional may have over potential legal action that may be brought in the future. Since, when proper informed consent is obtained, enough information has been disclosed in order for the patient to make an informed decision on whether or not they truly want to proceed with the recommendation. However, informed consent laws were not always in place.

Informed consent laws first began at the beginning of the 20th century when the Supreme Court heard a case in which a doctor admitted to deceiving his patient in order to convince her to have an operation. The Supreme Court decided that American citizens have a right to knowledge and consent prior to undergoing a medical procedure.

In the 1950s, medical patients acquired the right to be told of the possible positive and negative effects of the treatment their medical professional was recommending.

In 1972, the 1950s law took a larger step forward as medical professionals were required to specifically disclose the risks pertaining to treatment or procedure in a way the patient could understand. In other words, the medical professionals were required to speak in “layman's terms.”

Today, if informed consent is not obtained from a patient by a medical professional, the medical professional is at risk of not only civil litigation, but criminal charges as well. Performing treatment on an uninformed, unwilling person is no different from attacking a person and committing battery. The legal term for a harmful or offensive touching without permission is battery. Battery is a criminal offense, and it can also be the basis of a civil lawsuit. The key element of battery is that the touching is unauthorized, not that it be intended to harm the person. Therefore, forcing a procedure on an uninformed, unwilling patient could constitute the criminal offense of battery.

When a Medical Professional Must Inform

The origin of informed consent stems from the now established legal and ethical rights of a medical patient to decide what happens to their own body. Therefore, for informed consent to have properly been given, the following discussion must usually take place between the medical professional and the patient, though the nature of the topics may vary.

  1. The type of treatment or operation that the medical professional recommends
  2. Possible alternatives to the recommended treatment or operation
  3. The risks and benefits of the treatment or operation that the medical professional recommends as well as the risks and benefits present in possible alternatives
  4. The medical professional making certain that the patient clearly understands the topics discussed in 1-3
  5. Understanding by the medical professional when the patient does not want to follow the recommended treatment

Standards

As mentioned earlier, it has been established by the court system that a medical professional must discuss the recommended treatment plan with the patient in such a way that the patient understands. However, it may sometimes be difficult for a medical professional to ascertain just how much information is needed before a patient can be able to give their informed consent. Courts have adopted different standards by which a medical professional may be required to follow:

  1. Reasonable Physician Standard
  2. Reasonable Patient Standard
  3. Subjective Standard

The Reasonable Physician Standard is a standard of disclosure of information used in the wording of informed consent documents, based on customary practice or what a reasonable practitioner in the medical community would disclose under the same/similar circumstances. In other words, the medical professional must disclose all information which would influence the patient, or any other reasonable person, in deciding whether or not to go ahead with the recommended treatment.

The Reasonable Patient Standard is a standard by which the medical professional must provide information from the viewpoint of the patient. Courts that use this standard require the medical professional to disclose information that a reasonable person in the patient's position would have considered important when deciding to consent to treatment.

The Subjective Standard focuses on the patient's specific ailments and what information that particular patient would need to know in order to make an informed decision regarding treatment. This standard is less objective than the Reasonable Physician Standard and the Reasonable Patient Standard.

Informed Consent Exceptions

While all healthcare treatments require some form of consent, there are a few exceptions to that rule. For example, if a patient does not have the capacity to make informed decisions regarding their health, they are not required to give informed consent to treatment since they are not able. In this situation, informed consent must still be obtained by a medical professional prior to going forward with treatment but the informed consent would come from a surrogate decision maker instead of the patient themselves. If time is of the essence and there is an imminent threat to the life of the patient, the medical professional may make the decision for the patient without seeking a surrogate decision maker.

In some situations, a patient may waive consent altogether. If this is the case, the medical professional may proceed without seeking permission or providing detailed information as to what the treatment involved.

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