Parent, Child, and State Flashcards
A doctor who performs surgery on a minor child without a parent’s consent is liable in
tort, UNLESS any of the following exceptions apply:
Emergency. Parental consent is not necessary in emergency situations when there is not enough time to obtain consent from a parent.
Public Health Concerns. Parental consent may not be necessary for certain types of medical care related to public health concerns (e.g., treatment for especially contagious diseases such as venereal disease).
Age of Child. Some states make an exception to the parental consent requirement for children near the age of majority undergoing relatively minor medical procedures.
Parens Patriae.
Under the parens patriae authority of the state, a state can intervene to protect children when their parents deny them needed medical care (usually based on abuse or neglect grounds). However, the concept of need is interpreted narrowly. In order to decide whether the medical care is needed, courts will:
Examine whether a condition is life threatening or whether it can be postponed until the child reaches the age of majority;
AND
Weigh the risks and benefits of the treatment.
If a parent denies their child needed medical care based on religious beliefs,
many states will still order the needed medical care but exempt the parents from criminal liability.
Inter-Spousal Immunity.
Historically, spouses could not sue each other in tort.
Today, most jurisdictions have abolished inter-spousal immunity.
Parent-Child Immunity.
Historically, minor children could not sue their parents in tort.
Today, most jurisdictions have abolished parent-child immunity.
In jurisdictions that still have parent-child immunity, there is usually an exception for willful or wanton conduct as opposed to mere negligence.
Loss of consortium is
a claim in damages intended to compensate a spouse for loss of companionship, sexual relations, or affection. Damages for loss of consortium are typically only available to the legally recognized spouse of the injured party.
Parents have a fundamental right to
direct their child’s upbringing, which includes
a right to control their child’s religious education.
Generally, courts will not interfere with parental decisions regarding their child’s upbringing and education UNLESS the child’s wellbeing is endangered.
