Informed Consent Flashcards
Battery
An Act
Intended to cause a harmful or offensive contact (or imminent apprehension of such a contact) with the person of another
Which causes harmful or offensive contact with the person of another
Harmful Conduct
An actor is subject to liability to another for battery if:
He acts intended to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and;
A harmful contact with the person of the other directly or indirectly results.
Offensive Conduct
An actor is subject to liability to another for batter if
He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact and
An offensive contact with the person of the other directly or indirectly results
Bodily Harm
Bodily harm is any physical impairment of the condition of another’s body, or physical pain or illness. A bodily contact is offensive if it offends a reasonable sense of persona dignity, it must offend the ordinary person and as such one not unduly sensitive as to his personal dignity
When Consent is Required/When it is Not
If in the course of an operation to which the patient consented, the physician should discover conditions not anticipated before the operation was commenced, and which, if not removed, would endanger the life or health of the patient, he would, though no express consent was obtained or give, be justified in extending the operation to that condition. (Mohr)
Physician Duty to Disclose
A physician is under a duty to treat his patient skillfully. Physicians are under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it. Due care may include, advising patient of the need for or desirability of any alternative treatment or warning the patient of any risks to his well-being. The standard for the duty to disclose is what is reasonable under the circumstances. There are 5 reasonableness standards.
Physician Centered → ASSOCIATED W/ NARROW STANDARD
Whatever physicians practicing in the community would disclose to that patient
Majority rule
Full Disclosure of All Risks
Disclose everything no matter how small or remote
Not practical, not adopted
Patient-Centered Subjective Standard → ASSOCIATED W/ BROAD STANDARDS
Whatever the individual patient would deem significant to his decision
Few if any states adopted
Patient-Centered Objective Standard
Whether the probability of that type of harm is a risk which a reasonable patient would consider in deciding on treatment → what would a reasonable patient would consider significant?
Uncommon!!!!
Objective Modified Pure Patient-Centered Standard
Risk is material when a reasonable person, in what the physician knows or should know to be the patient’s position, would likely attach significance to in deciding whether or not to forego the proposed therapy position
Adopted in Canterbury v. Spence.
Determined by basis of physician medical training and experience
Exceptions to the Duty to Disclose
Widely known risks
Risks the patient has already discovered
Immaterial risks
Therapeutic Privilege
Under which MDs may withhold information if they believe it would be harmful to patient’s well being (Rejected in CA)
Required Disclosures:
(1) Physician Conflict of Interests
-royalties, financial stakes, company representation, payments per prescription or kickback schemes. (DAB v. Brown), companies sponsoring research, insurance reimbursements, financial incentives from a patient’s body (Moore v. Regents). Courts take either narrow or broad approach from the 5 reasonableness standards.
(2) Physician Training and Outcome
-Four elements are valid in informed consent: (1) Nature of procedure ; (2) Risks and Hazards (Think of physician experience, Duffy v. Flagg: P was pregnant and wanted a vaginal birth after c-section. D didn’t disclose bad outcome of a birth where the baby died. P’s baby died at birth. Holding: required information to what a reasonable patient would want vs that particular patient → objective patient standard . Hard to draw line as both sides had previous experiences that may elevate risk → P’s first child was cesarean + D had bad outcome before. Also Hospitals may require new physicians to be surveilled or sent elsewhere for training. Physician degree of experience relates to risk and obtaining informed consent )(3) Alternatives (4) Anticipated benefits
(3) Physician Impairment
