Every day, people give and receive consent to participate in a variety of medical procedures. Whether it is through signing an informed consent or giving direct verbal permission, patients agree to allow physicians the right to treat them.
However, since no patient can read about every possible outcome that may result from a prescribed treatment, there are some situations where the law steps in and provides protection for those involved. To help you understand the legal needs of the medical community, we have outlined several different types of medical situations that may require legal protection.
Any failure on the part of a physician to meet accepted standards of practice is considered medical malpractice.
Since doctors are held to these standards, they are responsible for making safe and effective choices when prescribing treatment or medication. As such, if an error occurs due to negligence, whether it is a failure to diagnose a medical condition or administer the proper dosage, patients may be able to hold their physicians accountable for any harm caused and the doctor may be required to compensate the patient by offering new treatment options free of charge or paying out large settlements in civil court. Therefore, if you or a loved one has been the victim of medical malpractice, it is best to consult with an experienced attorney who can help you understand your rights and determine the best way to proceed.
Informed consent is a legal document that allows doctors to perform any medical treatment or diagnostic procedure. In most cases, informed consent needs to be signed by the patient and cannot be nullified unless a clear mistake has been made. Although a doctor must give a detailed explanation of proposed treatments, he/she does not have to fully disclose all possible risks and side effects associated with those procedures.
However, if there are specific concerns about certain groups of patients (i.e. pregnant women), additional disclosure may need to occur as mandated by law.
Much like cases involving unconscious patients, the law often protects minors from harm by allowing parents or guardians to make medical decisions on their behalf. These decisions may include determining if a child has the mental capacity to understand proposed treatments and providing consent to life-saving procedures when necessary.
Furthermore, in some states, parents must also obtain permission from their children once they reach a certain age (i.e. 13 years old). Additionally, there is no universal “age of consent” for surgeries or other invasive procedures so physicians and parents need to check local and state laws.
When a patient loses consciousness due to injury, illness, or advanced age, he/she can no longer provide their consent for medical procedures. As such, the law steps in to help doctors determine the best course of action by allowing them to act with what is known as “implied consent”.
Implied consent means that based on surrounding evidence (i.e. unconscious person found at the scene of a car crash), it can be assumed that any proposed treatments are what the patient would have wanted if they were conscious and aware enough to make those decisions themselves. However, this assumption does not hold when an individual lost consciousness due to substance abuse or mental illness since they may not have had full control of their actions at the time.
Organ donation occurs when a person donates one or more of their organs to a transplant recipient. In most cases, this is an optional choice and patients must decide if they want to participate in the program themselves. However, there are some key exceptions where certain individuals may be required to give consent for organ donation even though they are unable to make those decisions for themselves.
For example, if a deceased individual has not provided clear consent before their passing, the law may allow family members of that person to give consent for organ donation on their behalf.
Advance Directives/Living Wills
There are several types of living wills known as “advance directives” depending on the state in which they were written and signed by the patient. These include a medical power of attorney forms allowing another person to make medical decisions on your behalf for particular conditions you outline within these documents, do not resuscitate forms specifying that healthcare workers are not to perform cardiopulmonary resuscitation in the event of cardiac or respiratory arrest, and organ donor forms authorizing your family members to give consent for you to donate organs when you pass.
As these forms are legally binding, failure for family members to abide by these documents will result in legal action being taken against them.
As you can see, many different medical situations require legal protection. Regardless of whether or not you have a healthcare power of attorney in place, it is always important to be aware of your rights as a patient and make sure your doctor is following proper procedure to ensure the best possible care for all patients involved.