Exceptions to Informed Consent in Emergency …

1 He doctrine of Informed Consent is a legal con-cept that applies to all physicians in every fieldof medicine. This doctrine is premised on thenotion that [e]very human being of adultyears and sound mind has a right to determine whatshall be done with his own body .. 1 The principle ofbodily self -determination, even in Emergency care situa-tions, permeates through all cases involving informedconsent and may only be set aside by legally recognizedexceptions. These Exceptions are included in both statutory and case law (ie, legislature -created andjudge - created law, respectively). This article explainsthe Informed Consent doctrine and reviews the impor-tant legally recognized Exceptions in the context ofemergency care. THE DOCTRINE OF Informed CONSENTFor a patient to be considered legally Informed , thedoctrine of Informed Consent requires a patient to havereasonable knowledge of the procedure to be performedas well as some understanding of the nature of the risksinvolved in the provide this level of know-ledge and understanding, a physician generally has theduty to disclose to the patient the following information.

2 3 Diagnosis,including an understanding of anysteps taken to determine the diagnosis Nature of the proposed treatment,includingthe potential risks of the treatment and theprobability of success Medically recognized alternative measures relat-ing to diagnosis or treatment, including mea-sures that may be considered less desirable bythe physician Consequences of the patient s decision todecline or refuse treatmentDepending on unique clinical circumstances, somejurisdictions may impose greater or lesser duties on thephysician than the requirements stated ,4 Limitations to the Doctrine of Informed ConsentLimitations to the doctrine of Informed Consent doexist, and physicians do not have a duty to discloseevery remote risk associated with a medical example, the physician does not need to disclosethe chance that a spinal anesthetic may be contaminat-ed and may therefore cause neurologic damage if thechance of contamination is no longer considered acurrent risk.

3 Nor do physicians have a duty to discloserisks that are considered common knowledge or al-ready obvious to the patient, such as the risk of infec-tion following a surgical 12 However, physi-cians should note that [r]isks of drug side -effects ..are singled out for disclosure by some courts, even ifthe risk of side effect is small. 2,13 Fundamentally, thelaw only requires disclosure of risks that are defined as material,as judged by the seriousness or chance ,5,7 12In the case of McKinney v Nash,thecourt defined material information in the followingterms:Material information is that which the physicianknows or should know would be regarded as sig-nificant by a reasonable person in the patient sposition when deciding to accept or reject therecommended medical procedure. To be mater-ial, a fact must also be one which is not com-monly appreciated.

4 If the physician knows orshould know of a patient s unique concerns orlack of familiarity with medical procedures, thismay expand the scope of required ,12 Exceptions TO THE DOCTRINE OF Informed CONSENTOne of the most broad and generally accepted excep-tions to the Informed Consent rule is that a physician isTMr. Hartman is Contract Specialist, Southern California PermanenteMedical Group, Pasadena, CA. Dr. Liang is Assistant Professor of Law,Pepperdine University School of Law, Malibu, CA, and a member of theHospital PhysicianEditorial Physician March 199953 Exceptions to Informed Consent in Emergency MedicineKurt M. Hartman, JD Bryan A. Liang, MD, PhD, JDPerspectives in Legal Medicine and Health Lawnot under a duty of disclosure in cases in which it is rea-sonably believed that disclosure to the patient wouldpose a serious threat to the patient s well ,14In theseminal case of Canterbury v Spence,the court articulatedthis exception by stating:It is recognized that patients occasionally be-come so ill or emotionally distraught on disclo-sure as to foreclose a rational decision, or com-plicate or hinder the treatment, or perhapseven pose psychological damage to the that is so, the cases have generally heldthat the physician is armed with the privilege tokeep the information from the patient, and wethink it clear that portents of that type may justi-fy the physician in action he deems medicallywarranted.

5 The critical inquiry is whether thephysician responded to a sound medical judg-ment that communication of the risk informa-tion would present a threat to the patient s general rule is also applicable to Emergency carecircumstances. For Emergency medicine specifically, the law ac-knowledges that mechanistically imposing the duty ofinformed Consent may become detrimental to thepatient s health and potentially to the patient s , the largest number of recognized excep-tions to the doctrine of Informed Consent comes fromthe challenges posed in Emergency medical circum-stances. The general rule is that, in certain emergencymedical situations, patient Consent is presumed to existfor medical treatment that addresses the example, a typical state statute indicates that:A [physician] shall not be liable for civil dam-ages for injury or death caused in an emergencysituation occurring in the [physician s] office orin a hospital on account of a failure to inform apatient of the possible consequences of a med-ical procedure.

6 15,16 The following three common clinical scenarios in-volve Informed Consent considerations during emer-gency care. These scenarios address the unconsciouspatient, the conscious patient with questionable com-petency, and the minor Unconscious PatientAn almost universal exception to the doctrine ofinformed Consent applies when the patient is uncon-scious and the probability of harm because of failure totreat is great and surpasses any threatened harm fromthe treatment premise of this exception isthat, when the patient is unconscious and in immedi-ate need of Emergency medical attention, the duties ofdisclosure imposed by the doctrine of Informed con-sent are excused because irreparable harm and evendeath may result from the physician s hesitation toprovide treatment. Barnett v case of Barnett v Bacharachillustrates this exception .

7 In this case, the court heldthat, in a medical Emergency in which the patient liesunconscious on the operating table, the surgeon maylawfully carry out the duties of a physician in the bestinterest of the patient even if these duties entail theperformance of a procedure that was not ,18In Barnett v Bacharach,a patient whocomplained of abdominal pains was diagnosed with atubal pregnancy. The patient consented to undergosurgery only for the removal of the ectopic incision, however, the surgeon discovered that thepatient did not have an ectopic pregnancy but thesymptoms were instead from acute appendicitis. Thesurgeon determined that, in the best interest of the pa-tient, the appendix should be removed, and an appen-dectomy was performed. Following the patient s un-eventful recovery, the patient refused to pay for thesurgical services provided because Informed consentwas not first obtained and thus the procedure was un-authorized.

8 At trial, the court found that the surgeonacted properly because of the seriousness of the pa-tient s condition. The court stated:What was the surgeon to do? Should he haveleft her on the operating table, her abdomenexposed, and gone in search of her husband toobtain express authority to remove the appen-dix? Should he have closed the incision on theinflamed appendix and subjected the patient,pregnant as she was, to the danger of a generalspread of the poison in her system, or to thealternative danger and shock of a second, inde-pendent operation to remove the appendix? Orshould he have done what his professional judgment dictated and proceed to remove the offending organ, regarded it as a mere ap-pendage serving no useful physiological func-tion and causing only trouble, suffering, andofttimes death?

9 17 The court understood that to deny the existence of anemergency situation and insist on traditional informedconsent would make every surgeon litigation - consciousinstead of duty - conscious as he stands, scalpel in hand,over his unconscious patient. 17It is essential to note that for the unconscious-patientexception to apply, the relevant Emergency situation54 Hospital Physician March 1999 Hartman & Liang : Informed Consent : pp. 53 59must require immediate medical attention with insuffi-cient time to fully inform the patient orseek consentfrom another authorized person. Tabor v a similar case, Tabor v Scobee,thecourt found that a violation of Informed Consent hadoccurred. During the course of an authorized appen-dectomy on a female patient, the surgeon becameaware of the patient s infected fallopian tubes anddecided to remove the tubes at that point in the bestinterest of the court held that the surgi-cal procedure did not fall within the exception toinformed Consent in an Emergency situation.

10 Despitethe surgeon s determination that a long-term delay (ie,6 months) in the removal of the patient s fallopiantubes could result in serious harm or death, the patient smedical condition did not constitute an emergencybecause the patient would have had time to make an in-formed decision as to when she wished the procedure tobe emergencies thatrequire blood transfusions frequently pose greatercomplications for physicians attempting to treat uncon-scious patients. This scenario is particularly difficult incases in which the unconscious patient s family mem-bers indicate that the patient is opposed to blood trans-fusions for religious reasons and that the family will notprovide the necessary Consent . To determine if thetransfusion should be performed in these cases, themajority of courts have assessed the clinical circum-stances using the standard of the compelling 22 Under this standard, the transfusion isordered if it is clear that the patient is incompetent tomake sound medical decisions at a certain moment intime and if the patient would likely die without theblood 22 The policy rationale for thisabrogation of Informed Consent lies in the compellingstate interest in the preservation of life, which out-weighs the patient s religious tenets as expressed by hisor her family a procedural perspective.