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).

2 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.

3 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.

4 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. 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.

5 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.

6 To be mater-ial, a fact must also be one which is not com-monly appreciated. 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.

7 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.

8 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. 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.

9 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.

10 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.