informed consent Flashcards
An important legal protection is the right to give informed
consent to treatment
INFORMED CONSENT
True or False
A dentist who performs a procedure on a client without informed consent may be found civilly liable for committing battery
True
The basic principle of informed consent is that:
- Give proper education about the risks and benefits
- The patient has the right to choose freely whether to submit to treatment or not
- Unless the dentist has provided the patient with scientifically valid, accurate information about the treatment, a state of informed consent does not exist
Should reflect that the patient already has informed consent about the treatment option of the clinician
INFORMED CONSENT FORM (ICF)
WHO CAN GIVE INFORMED CONSENT?
- Any capacitated patient
- Spouse - if patient himself cannot give informed consent
- A parent or natural guardian in case of minors
- A guardian in case a person is incapacitated to give consent
- A legal guardian appointed by the court
- Duly appointed officers of the Department of Social Welfare and Development (DSWD)
before a dentist could do a physical examination, the proper consent must be given by the patient
Non-Consensual Physical Contact
the patient has the right to be informed regarding procedures, risks, and alternatives, and answers to questions with respect to treatment, in terms that they can be reasonably expected to understand
Non-Consensual Medical Treatment and Procedure
The failure, without legal reason, to comply with the terms of contract
BREACH OF CONTRACT
It is also defined as the failure without legal reason excuse, to perform any promise which forms the whole or part of the contract
BREACH OF CONTRACT
Is the existence of an agreement or bargained-for exchange where one of the parties fails, without a legally valid excuse, to live up to his or her responsibilities under the contract
BREACH OF CONTRACT
True or false
A contract may be breached in whole only
False
A contract may be breached in whole or in part
a breach of contract usually occurs by one or more of the parties in one of the following ways:
- Failing to perform as promised
- Making it impossible for the other party to perform
- Making it known there is an intention not to perform
States that you cannot enforce contracts that are not in writing
STATUTE OF FRAUDS
What contracts must be in writing?
- Sales of real property
- Promises to pay someone else’s debt
- A contract that takes longer than one year to complete
- Property leases for more than one year
- Contracts for more than a certain amount of money, the amount of which is set by the state (500)
- A contract that will go beyond the lifetime of the one performing the contract
- The transfer of property upon the death of the party performing the consent
- Refers to the prescription period
- Every action has a corresponding period to perform
STATUTE OF LIMITATIONS
are laws that set the deadline or maximum period of time within which a lawsuit or claim may be filed
Statutes of limitations
- The deadlines vary depending on the circumstances of the case, and the type of case or claim
- Within how many years from the time of negligence or malpractice?
- Statute of Limitations
- 6 years
If you sue for breach of contract, you must sue within the ________
statute of limitations
“let the master answer”;
the dentist may be held liable for the wrongful act of his or her dental assistant
Doctrine of Respondeat Superior
a dentist with people using the dentist’s name as an agent even without permission, the dentist can be held liable if the dentist remains silent
Doctrine of Ostencible Agent or Holding Out Theory or Agency by Estoppel
applicable to visiting dentists
Borrowed servant Doctrine
the surgeon is likened to a ship captain who is responsible for everything that goes wrong in the operating room, including those acts done by those under him
Captain of the ship Doctrine
substitute liability
Vicarious Liability of Hospital
is under the State Immunity from Suit; government cannot be sued
Government or Public Hospital
also cannot be sued because it sources its funds from charity or donations of funds to help other people
Private Charitable or Eleemonsynary Hospital Private Charitable or Eleemonsynary Hospital
those entering private charitable or government hospital cannot sue the hospitals, implying their waiver of this right to sue
Implied Waiver Theory
those patients in private charitable hospitals do not have a contract to the hospital, only the doctor
Doctrine of Independent Contractor
May be defined as the pecuniary compensation, recompense, or satisfaction for an injury sustained, or as otherwise expressed, the pecuniary consequences which the law imposes for the breach of some duty or the violation of some right
DAMAGES
are the amounts recoverable or that which can be awarded for the damage done or sustained
DAMAGES
is the legal invasion of a legal right
Injury
is the hurt, loss or harm, which results from the injury
damage
there can be damage without injury in those instances in which loss or harm was not the result of a violation of a legal right
Damnum Absque Injuria
In such cases, the consequences must be borne by the injured person alone
Damnum Absque Injuria
The law affords no remedy for damages resulting from an act that does not amount to a legal injury or wrong
Damnum Absque Injuria
If a damage results from a person’s exercising his legal rights
Damnum Absque Injuria
They cannot be granted unless supported by the evidence on record
ACTUAL DAMAGES
It is the compensatory or actual damages that are most frequently involved in professional liability cases
ACTUAL DAMAGES
Includes physical suffering, mental anguish, fright, serious anxiety, besmitched reputation, wounded feelings, moral shock, social humiliation, and similar injury
MORAL DAMAGES
True or False
There is no hard and fast rule in the determination of what
would be a fair amount of moral damages
True
BASIS OF AWARD OF MORAL DAMAGES
- moral damages are not punitive in nature but are designed to compensate and alleviate in some way the physical suffering, mental anguish, etc. unjustly caused to a person
- Such damages, to be recoverable, must be the proximate result of a wrongful act or omission of the factual basis for which is satisfactorily established by the aggrieved party
CONDITIONS FOR AWARD OF MORAL DAMAGES
- Duty
- deviation
- direct causation
- damage
This is usually the Civil Code
LEGAL PROVISIONS MANDATING AWARD OF MORAL DAMAGES
suit that is groundless, malicious, without probable cause, or part of conspiracy
Unfounded suit
a small sum of money awarded to a plaintiff to commemorate the fact the plaintiff won their civil case in court.
Nominal damages
are more than nominal but less than compensatory damages
Temperate or Moderate damages
a predetermined or specified amount of money that must be paid as damages if one party fails to meet certain contractual requirements
Liquidated Damages
are imposed, by way of example or correction for the public good
Exemplary or Corrective Damages
An important legal protection is the right to give informed consent to treatment; this can be done through interviewing
INFORMED CONSENT
In writing informed consent, what should the Dentist do?
- Dentist is to properly educate the patient about the risks and benefits of the proposed treatment
- Dentist gives alternative treatment options
- Dentist may also give the option of no treatment
- The patient has the right to choose freely whether to submit to treatment or not
- Treatment results would be dependent 50% on dentist and 50% on patient
should be signed by the patient after giving the informed consent to the patient
INFORMED CONSENT FORM
modified for different cases because of different risks, different treatment alternatives, and different procedures
INFORMED CONSENT FORM
If condition is inherent like bleeding, discomfort, pain, or anesthesia, you can opt for what?
you may not include it in the informed consent
How long should ICF be kept for?
10 years
COMMUNICATION/LANGUAGE BARRIER ISSUES IN
INFORMED CONSENT TAKING
- If there is no way to communicate with the patient and give informed consent, you may refer the patient to other facilities who can understand the language
- If patient is persistent on being treated at your clinic, then an interpreter is required in order to have informed consent
- Interpreter should be honest and dependable
- Interpreter should affix his/her signature to signify that the translation is successful
