template · 2020. 8. 12. · 8/12/2020 3 risks, benefits, alternatives • “informed” based on...

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Implied Consent and Emergent SituationsRyan Kirshenbaum, J.D., Staff Attorney, Nebraska Methodist Health System

Case #1

• Pregnant mom experienced minor labor contractions. Hospital

visit. Fetal heart rate decline

• Attending MD obtained verbal consent from Mom to perform

emergent C-section, neonatal resuscitation MD called, on way

• Mom under general anesthesia, dad in waiting room

• Baby delivered without heart rate, code team initiated

• Neonatal resuscitation MD arrived, continued, heartbeat found

24min after birth

• Baby has permanent severe mental and developmental

disabilities

• Mom alleges MD did not obtain consent to resuscitate Baby

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Case #2

• 29yo patient arrived in ED with severe asthma, initially hesitant to go to

ED, stated she only wanted Oxygen

• ED gave Nebulizer and Oxygen, patient decided to leave

• Blood gas test results showed severe risk requiring intubation, patient

declined intubation

• Patient’s parents were MD’s, spoke with ED MD’s, parents said to listen

to the patient and avoid intubation until dad could fly in

• Patient and sister decided to “run” to the ED exit while MD’s were away

• Patient forcibly taken back, 4 point restraints, intubation based on MD

judgement

• Patient discharged next day with improved breathing

• Two years later, patient had another severe asthma attach, refused

hospital due to prior traumatic experience, died

• Estate files wrongful death action

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Healthcare Professional

Patient

Right to be Informed

Right to Consent

Hippocratic Oath

Duty to Treat

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Consent vs. Informed Consent

• General Consent

• Voluntary Agreement

• Permission

• Expl: Consent to search

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Consent vs. Informed Consent

• “Informed” Consent

• Consent + R/B/A

• Expl: Surgery

• Conversation, not the paper

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Risks, Benefits, Alternatives

• “Informed” based on reasonable patient

• Right to Self Determination

• Equal and opposite right to refuse

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Contents

• Info that RPP would want to know• What other practitioner in SorS

circumstance would disclose

• Consider condition of patient

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Right to Refuse

• Right to consent = Constitutional right

• Equal and opposite right to refuse

• Right to Self-Determination

• Quinlin Test

• Balance interest in stripping the right vs.

patient’s privacy interest

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Informed Consent

• Nebraska

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Informed Consent

• Nebraska

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Informed Consent

• Iowa

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Legal vs. Ethical Right to Consent

• American Nurses Association Code of Ethics

Provision 1.4:

• “Patients have the moral …right to determine what will be

done with and to their own person”

• “…Includes the opportunity to make decisions with

family…advice from expert[s]…

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• National Association of Social Workers Ethical

Standard 1.03:

• Social workers should use clear and understandable

language to inform clients of the purpose of the services,

risks …, limits to services…reasonable alternatives, clients'

right to refuse or withdraw consent…, and should provide

clients with an opportunity to ask questions.

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• American Occupational Therapy Association Code of

Ethics Principal 3:

• “Occupational therapy personnel shall…Obtain consent after

disclosing appropriate information and answering any

questions…to ensure voluntariness.”

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• Legal and Ethical duty to inform

• Need Capacity and Competency

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Capacity vs. Competency

• Capacity = Medical

• Competency = Legal

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• Capacity = Medical• Presumed

• Determined by medical personnel

• Reasonable degree of certainty

• Ability to understand, evaluate, voluntarily decide

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• Competency = Legal

• Determined by state law, court

• If not competent, next of kin or state law

• Guardian

• Court-appointed if incompetent

• Can be temp

• Advocate for patient’s rights

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How to Obtain

• 3 Types:

• Express

• Statutory

• Implied

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Express Consent

• Verbal or written

• Affirmative

• Expl:

• “Yes”

• Informed Consent Form

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Statutory Consent

• Consent set forth in statute

• Or, lack of consent

• Expl: Crime of statutory rape

• Under certain age = cannot consent

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Implied Consent

• Inferred through actions

• Expl: Restaurant

• Expl: Drive to MD office for care, allow care

• Implied by Law

• Deemed to consent by law

• Statute or common

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Implied Consent in Emergency

• Most common = Emergencies

• Most states = 2 major factors:

1. Unable to obtain consent from patient or

representative

• Unconscious = Presumed consent to emergency

care

2. Inaction could cause greater injury

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• General Rules

• Must document:

1. Nature of emergent condition

2. Immediacy of action

3. Magnitude of injury/illness

4. Serious harm/death imminent

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• Consent “Presumed”

• Action: Treat

• Minimum necessary, mitigate emergency

• Best interest of patient

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Emergency - So What If?

1(a). If patient is competent and has

capacity, explain R/B/A, etc.

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Emergency - So What If?

2(a). Obtain Consent

• Oral = Binding but hard to prove

• Written = Best, Easily proved

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Emergency – So What If?

1(b). If patient is not competent or does not

have capacity:

• Obtain consent from someone else

• Follow policies/procedures for order or priority

• Petition Court?

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Emergency – So What If?

2(b). If consent cannot be obtained

• Document clinical determination of emergency

• Provide reasonable care given the

circumstances, mediate emergency

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Emergency – Minor Child

• Parent or Guardian

• What if divorce?

• Next of Kin

• Physician Determination

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Emergency – Minor Child

• State law may permit minor to consent

• Marriage/Emancipation

• STD

• Pregnant

• Military

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‘Lack of Informed Consent’ Claims

• Malpractice action

• Intentional Torts

• Statutory violation

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New Emergency Arises

• Expl:• Appendectomy, consent obtained

• During surgery, fallopian tube disease discovered

• Serious harm or death within 6mo if untreated

• MD opted to remove fallopian tubes

• Court ruled for patient, no informed consent, not

emergent enough

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New Emergency Arises

• Lesson:

• Ordinary consent rules apply

• If emergent:

• Must assess and document imminent serious

harm or death

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Ghost Surgery - Emergency

• Surgeon Swap

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Case #1 Revealed

• MD argued:• Recognizable health care emergency, needed immediate

attention

• Plaintiff Expert Witness argued:• MD should have obtained IC after 10-15min of resuscitation

• 24min of resuscitation was well beyond SOC, certain to have

major brain damage

Stewart-Graves v. Vaughn, 162 Wn.2d 115 (Wash. 2007)37

Case #1 Revealed

• Court held:

• Health care emergency existed = Exception to

general IC rules

• IC could not reasonably be obtained, even from

Dad

Stewart-Graves v. Vaughn, 162 Wn.2d 115 (Wash. 2007)

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Case #2 Revealed

• MD argued:

• Emergent situation, not required to obtain informed consent

• Refusal of treatment, combative behavior, attempts to flee, confused mental

state

• Patient’s estate argued:

• Intubation without consent, related trauma

• Mental abilities at time of intubation were not impaired and consent should

have been obtained, sister in waiting room, father en route

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Case #2 Revealed

• Court held:• The ‘emergency exception’ to informed consent comes into

play when the patient is unconscious or incapable of

consenting

• Or consent of Representatives

• Emergency exception does not abolish a patient’s

constitutional right to refuse medical care

• If patient is competent and able to consent, consent should be obtained

Shine v. Vega, 429 Mass. 456 (Mass. 1999)

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Disclaimer

• The material in this presentation is for informational purposes

only.

• The material in this presentation is general and is not intended

to be legal advice.

• Nothing in this presentation should be relied upon or used

without consulting legal advice from qualified legal personnel to

consider your specific circumstances, possible changes to

applicable laws, rules and regulations and other legal issues.

Receipt of this material does not establish an attorney-client

relationship.

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Disclaimer

• For work-related questions related to

consent for treatment:

• Lisa Marcuccio

Litigation and Contract Manager

NMHS Legal/Compliance Department

(402)354-4231

[email protected]

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If Time Permits

EMTALA

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EMTALA Overview

• The Emergency Medical Treatment and

Active Labor Act

• Goal: Prevent discrimination based on

patient’s ability to pay, insurance

• AKA “Patient Dumping” (passing off patients

that are unlikely to pay)

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EMTALA Overview

• Federal Law

• Applies in all States

• Supersedes similar State laws

• More restrictive State laws apply

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Basic Rule

If “Comes to the ED” Must

“Medical Screening

Exam”

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If “Emergency Medical Condition” Then Either

1. Stabilize and Treat

OR

2. Stabilize and Transfer

Important Definitions

• “Comes to the ED”

• Not presently a patient

• Either

• Presents to the ED and requests

exam/treatment or would reasonably need

exam/treatment based on observations

• Presents on Hospital Property (other than ED)

and requests exam/treatment or would

reasonably need exam/treatment

• Is in ground/air transport on Hospital Property

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• “Comes to the ED” continued

• EMS call to ED ≠ “Comes to the ED”

• ED may divert EMS call to another facility if on

“diversionary status”

• BUT if EMS shows up anyway, EMTALA

applies

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• “Medical Screening Examination (MSE)”

• Reasonable and appropriate medical

screening

• Includes ancillary services

• Sufficient to determine whether an

“Emergency Medical Condition” exists

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• “Medical Screening Examination (MSE)”

• Must be conducted by qualified emergency

services personnel

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• “Emergency Medical Condition”

• Must have both:

1. Condition with severe acute symptoms

(including pain, psychiatric);

2. Absence of immediate care would reasonably

result in:

• Placing the patient’s health in serious jeopardy; or

• Serious impairment of bodily function

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• “Emergency Medical Condition”

• Pregnant women having contractions

and:

• No time to transfer; or

• Transfer may pose safety threat to mom/baby

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• “Stabilize”

• To provide treatment of the EMC; and

• Worsening condition is reasonably unlikely

to occur during Transfer

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• “Transfer”

• Movement of patient outside of hospital’s

facilities at direction of hospital

• Does not include:

• Movement of deceased patient

• Patient leaves AMA

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Now that we know the definitions…

If “Comes to the ED” Must

“Medical Screening

Exam”

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If “Emergency Medical Condition” Then Either

1. Stabilize and Treat

OR

2. Stabilize and Transfer

Steps

1. Patient “Comes to the ED”

2. Triage

3. MSE

4. If EMC

• Stabilize and Treat OR

• Stabilize and Transfer

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Transfer

• Transfer can be for most clinical

reasons

• Specialty hospital

• Services not performed at your location

• Staffing insufficiencies

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Other Notes

• Patient can refuse transfer

• Must inform of risks and benefits

• Try to secure consent of refusal

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