_________________________________________________________________________________________

Emergency Situations vs. Informed Consent

In many situations, failure to obtain a patient's informed consent prior to a procedure or treatment is a form of medical negligence. This means a health care professional must inform a patient of all the potential benefits, risks, and alternatives involved in any medical procedure, surgical procedure or any other course of treatment, and must obtain the patient's written consent to proceed. Informed consent may be either express or implied. Express consent is given in writing or verbally. If written, it should include the name of the health care provider who discussed the proposed treatment with the patient, time and location where the consent form was signed. Consent not given by a patient verbally or in writing, but is understood from the surrounding circumstances of the procedure or treatment at issue, is known as implied consent.

In some emergency situations, opportunity does not allow time to obtain a patient's informed consent or the patient may be unconscious and unable to communicate. If an emergency involves risk to a patient's life or the patient is unable to communicate, consent may be implied with the understanding that the patient would have consented to such emergency treatment. The process of obtaining informed consent for a competent adult may seem relatively easy. However, in situations pertaining to mentally disabled individuals or children, the ability of the health care professional to obtain informed consent becomes more difficult. In such instances, serious questions may arise concerning who is able to give informed consent for these individuals. In many situations, a mentally disabled person has an appointed guardian who is authorized to make medical decisions and give informed consent for that individual. Health care providers need to be sure when they obtain informed consent for incompetent individuals, that they have obtained it from the correct person or persons.

In most circumstances, parents can give informed consent for treatment of their minor children. However, some states allow young adults under eighteen to participate more actively in their medical care and treatment, including the process of informed consent. Most states focus on mature minors adequately ready to understand the nature and consequences of treatment. In those states, such young adults may be able to provide consent without parental consent. Some states have passed specific laws allowing minors to consent, without a parents' knowledge and/or consent, to health care treatments pertaining to mental health, sexual activity and substance abuse.

A consent form does not release a health care professional from the applicable standard of care in performing a procedure, and you were injured as a result, you may still recover against him/her. Patients are entitled to complete information on all treatments and/or procedures to which they are subjected. A health care professional who fails to provide such information may be held accountable.

Not all situations require that informed consent be given. For example, although listening to a heartbeat through a stethoscope may be considered a "treatment" or "procedure," to some people (especially those who are uncomfortable in physician's offices), it's rare that a physician and patient would have a lengthy discussion about the benefits and risks of listening to a heartbeat using that device.

Contract/Warranty Breaches

Doctors rarely promise certain results from treatments or procedures. In some cases they do, and the failure to produce the promised results may be cause action for breach of contract or breach of warranty. If a patient is not satisfied with the results of a procedure and the health care professional had guaranteed or warranted a certain result, the patient may attempt to recover under a theory of breach of warranty.

Many states have passed legislation making it more difficult to bring and prevail in medical malpractice actions. Health care professionals, hospitals and facilities are protected by legal limits called "caps" on the amount of damages and attorneys' fees that can be awarded in malpractice actions in most states. Some states have state laws providing a set time-frame within which a patient must file a malpractice suit in court.

Certificate of Merit

In order for a plaintiff to file a certificate of merit, the plaintiff will first have to have an expert, usually another health care professional, review any relevant medical records and certify that the plaintiff's health care provider deviated from acceptable medical practices, which resulted in injury to the plaintiff. The plaintiff's attorney will then file the certificate of merit, which confirms the attorney has consulted with a medical expert and that the plaintiff's action does have merit.

If a case where a hospital employee commits malpractice, the hospital itself may be held liable. An employer may be held responsible for the negligent acts of its employee if the employee was acting within the scope of his or her employment when the negligent act and/or omission occurred. This is very important to plaintiffs in medical malpractice cases, as it helps ensure there will be a financially responsible party to compensate an injured patient.

If a doctor or other health care professional is an independent contractor, and commits malpractice while treating a patient in a hospital, the hospital cannot be held liable for the doctor's negligence. However, the hospital can be held responsible for its own negligence, for example, in granting attending privileges to an incompetent or unlicensed health care professional.