Informed Consent in Medical Malpractice - Research Paper Example

Running Head: INFORMED CONSENT IN MEDICAL MALPRACTICE Informed Consent in Medical Malpractice Insert Insert Grade Insert December 10, 2010 Outline Medical malpractice Standard of Care for medical practitioners Informed Consent Competency Information Voluntariness Exceptions Michigan Cases of Informed Consent in Medical Malpractice Law How to mitigate potential claims Conclusion Informed Consent in Medical Malpractice Medical malpractice is negligence, said to take place the time a medical specialist acts in an inattentive way when administering treatment to a medical situation. Primarily, malpractice may occur either because of action undertaken by the health specialist or by failure to undertake a suitable medical action. Examples of aspects of medical malpractice include not diagnosing or simply misdiagnosing a health condition, inability to accord a suitable treatment for a health condition and implausible delay in administering treatment after diagnosing a health situation (Larson, 2010, p.1). A set of regulations that govern malpractice lawsuits differs from one state to another. Medical malpractice is not a different tort, instead, the tort of negligence. In this vein, elements of medical malpractice are not different from those of negligence. These are violation, causation, duty, and damages. They are normally framed in health jargon, but are similar to the four mentioned elements that apply to negligence. Standard of Care for medical practitioners One of the vital aspects that come up in medical malpractice is that medical practitioners are regarded as individuals who should give very high levels of care than the normal layman. The standard of care reflects what is supposed to be undertaken with regard to the prevailing conditions. Health professionals are expected to render standards of care as would have done a reasonable health practitioner under similar conditions. Medical malpractice takes place when a health professional does not deliver duties to the degree that a plausible health professional would have rendered under the same conditions. If a qualified health specialist had taken the same method or treatment in question, under the same conditions, then medical malpractice would therefore not have taken place. Other specific aspects in medical malpractice entail errors in diagnosis, treatment matters, and difficulties in communication, prescription errors, and falls. For instance, if a medical officer fails to diagnose the plaintiff’s case in a desired way, then the medical officer may be said to have violated the standard of care he or she was supposed to have accorded the plaintiff. The standard of care to be used by health professionals is dictated to some degree, by reference to instructions and rules, state practice procedures, facility laws and methods, equipment literature, job explanation, health information and legal cases. A health provider must possess a suitable license failure of which may be evident enough that the health provider was indeed negligent. An alternative of establishing a health provider’s standard of care is through the health expert’s testimony (Morissette, 2008, p.120). Informed Consent Informed consent entails a medical practitioner revealing material facts to a patient who is supposed to not only grasp the material facts, but also make appropriate decisions based on the information received. Material facts refer to information that will enable the patient make a decision of whether or not to be administered treatment. The health provider is supposed to disclose all the dangers that the sick person may be interested in knowing. Such information is supposed to include aspects such as the anticipated pains of certain medication, the negative outcomes of treatment, other options to the treatment, the dangers of those other options, the dangers of not undergoing the treatment, the duration that a patient is expected to be alive and the possibility of the health professional having a fiscal interest in the treatment. An ailing person like one with a chronic cancer problem has the discretion to decide whether the dangers of the new form of treatment prevail over death. A patient may have a medical care consent allowing a certain individual to decide on this if the patient is incapable of doing so on their own. Cases of when consent may be required to be obtained are for operation, anesthesia, chemotherapy, and inoculation (Morissette, 2008, p. 125). Medical professionals should ensure that the informed consent has been provided and documented. Consent forms are of two types, specific and general. Whereas the latter enables a patient to consent to health care, the former is for a particular procedure like surgery. The forms should be endorsed by the patient under the presence of some witnesses. Incases of patients who are unable to speak English, a translator’s signature ought to be obtained as well. Consents are supposed to entail the following: patient’s name, date and period that the consent was obtained, the disease the patient is receiving medication for, a detailed explanation of the treatment to be given, name of the health professional that is being given the consent, an account regarding dangers of the entire procedure, and feasible options to the procedure being suggested. Others include, an account that going through such a procedure is not necessarily going to be successful, an account of the patient’s agreement to the procedure and a digression from the same if it becomes medically relevant in the course of the process, an account by the patient that he or she had the chance to present queries that she or he may have and the sign of the sick person or custodian. Generally, a health professional is supposed to be guided by an informed consent before carrying out any medical procedure. Informed consent cases are of two kinds. One is where the limit of the consent was surpassed and the other is where the consent was not acquired at all (Morissette, 2008, p. 125). Even if some treatment cases are for experiment purposes, the health professionals are required to grant fair caution of unknown dangers. However, health specialists are not supposed to give caution regarding unknown dangers. Competency A working definition for competency is the cognitive capacity to make a decision with respect to the patient’s objectives, concerns, and values. Informed consent is only allowed to be given by competent individuals. In this case, grown ups are normally considered as competent enough to give informed consent (Simon and Shuman, 2007, p.58). Lawful standards of competence prior to obtaining any treatment procedure are defined by state law and the effect of cognitive ability plays a minor role in the same. The standards may not be applicable in particular diagnostic cases of psychiatry. Medical situations that lead to emotional incompetence or denial of the health condition are not acknowledged by the law unless they greatly affect the mental ability of a patient. Mentally challenged patients may comprehend details given regarding their condition but fail to have both insight and the ability to appreciate the importance of the information. Inability to make decisions regarding healthcare may not impede treatment, but only requires the health professional to acquire alternative consent. On the other hand, the refusal of a sick person to accept treatment may not necessarily be regarded as incompetency. Studies from case law and scholarly literature show four fundamental standards for ascertaining competency in medical care decision making. They include communication of choice, grasping of relevant details provided, approval of alternatives and consequences that are available, and lucid decision-making (Simon and Shuman, 2007, p.60). Information The measure for the information that has to be revealed to enable the patient make an informed decision differs among states. Conventionally, the responsibility to give material facts has been gauged by a professional yardstick: what a plausible physician would reveal either under the conditions or under the routine way in which medical professionals disclose such information in a given community. An established patient-based standard concentrates on the material facts that any rational individual in the patient’s place would want to be acquainted with before making an informed decision. Many courts embrace this objective measure though some have advocated for the inclusion of the consequences of not accepting the specified treatment method. Voluntariness For consent to be regarded as volitional, it must be given willingly by the sick person and should be without any influence resulting from deception, compulsion, or duress, interfering with the individual’s decision-making course. In verifying whether consent is volitional, courts normally assess all necessary conditions including the duty of the psychiatrist in the process and the cognitive nature of the patient. Exceptions The objections to the need for informed consent are two-fold. First in cases where prompt treatment is needed to salvage a life or avert serious danger and it is not possible to obtain the consent either from the sick person or from a designated individual who can provide it on behalf of the patient. The law assumes that the consent could have been accorded. This exception is effected based on two important criteria. First, the urgent situation must be severe and secondly, the sick person’s condition rather than the environmental aspect dictates the urgency of the situation (Department of Health, 2006, p.12). The second exception referred to as therapeutic privilege is not easily applicable. Many courts have differed over its standards. It asserts that informed consent should not be given if the disclosure of material facts regarding dangers and alternatives are likely to be harmful to the patient’s health (Emmanuel, 2007, 115). Failure to acquire an informed consent from a patient prior to procuring treatment due to the health provider’s fear that the patient may reject the treatment is not a suitable exercise of therapeutic privilege. This exception should not be applied in avoiding the requirement to get informed consent from a patient for suggested medication, but rather to avoid causing unnecessary trauma in the course of the consent process. There are also cases where a patient can withdraw consent after making it. This should be taken into consideration even if it is done verbally (Maurer and Smith, 2005, p.135) Michigan Cases of Informed Consent in Medical Malpractice Law Regarding the disputable informed consent, both the CDC and the American Medical Association have resolved that surgeons who are HIV positive may be required to reveal their HIV status to their patient and to obtain their informed consent prior to performing their surgical duties. In a Michigan district court, it was discovered that a HIV positive surgeon technician was incompetent with respect to the Rehabilitation Act. On realizing that the plaintiff could be HIV positive, the health centre urged him to go for testing. He rejected both the testing and another alternative option at the hospital that made him to earn a lay off. The court dismissed the technician’s allegations that he was being segregated in bridging of the Rehabilitation Act after rendering him incompetent based on his HIV status thus making it impossible for him to continue working in the position of a surgical technician. The plaintiff recognized the fact that, since his duties required his hands to be in contact with the surgical tools, it could have exacerbated chances of the disease transmission. The court accented to the fact that there was a real possibility of the infection and since the effect of being infected by the disease is death, the nature, period and cruelty of the danger surpassed the fact that the probability of transmission was lower. In accordance to the guidelines of the Rehabilitation Act, the health organization had given the plaintiff an alternative docket at a similar income and related advantages (Kaufman et al, 1997, p.249). Moreover, there was a psychosurgery intervention in Michigan that entailed the institutionalization of an involuntary mental patient. On analyzing the case, the court termed the whole intervention as risky, irreversible, disturbing and of vague gains to the community and the patient. Given its previous characterization, it is not astounding that the court realized the requirement to an intrusion on an individual’s body must be complete, sufficient, and informed consent. Those mentally impaired patients who have been confined in given institutions without their voluntary decision cannot be able to give this volitional informed consent. Two aspects regarding the case are baffling. First, the claimants came with a document alleging to have been given informed consent. They also produced evidence to show that the parents supported their consent. In addition, the incident showed a previous inspection of the protocol and the authenticity of the consent by two particular committees. One of the committees looked at the scientific authenticity of the experiment while the other investigated the particular sufficiency of the process and the material of the consent. Despite this farce of an unwillingly confined mental case, these procedures were found to be both wanting and unable to suffice their intended objectives. The court also assessed the institution where the patient had been detained to verify its coerciveness for conducting research (Melnick and Dubler, 1985, pp.154-55). Additionally, a Michigan woman was awarded one million dollars by doctors because they had continuously granted her medication of a disease different from the one she was manifesting (Macbeth, et al, 1994, p. 11) How to mitigate potential claims First, a health professional should ensure that they have secured a comprehensive protection for malpractice insurance (Malpani, 2005, p.206). Whereas insurance coverage may not necessarily bar one from being sued, it will help in mitigating the likely fiscal impact on the health provider’s resources. Secondly, documentation of the physician’s medical activities is of paramount importance. This is because in every malpractice situation, lawyers would scrutinize the doctors’ documents seeking particular evidence that can add weight to their cases. The simple rule is that if it has not been written down, possibly it did not take place. Missing data, poorly coordinated information, or illogical diagnostic conclusions leave an impression of shoddy practice and poor medical judgment. Thirdly, to mitigate the risks of being sued for malpractice, the medical professional should be a nice person. He should be amicable, pleasant, and agreeable with patients and their families. Whereas being nice is not a guarantee of not being sued, being arrogant and loathsome may increase their chances of suing you. Fourth, honesty is imperative. Doctors should cease from making promises they cannot fulfill and admit when they are wrong. Being honest with patients and their family will make them be quick to like you rather than sue you incase of any malpractice (Malpani, 2005, p.206). Fifth, being open both in the physical and psychological sense will make a big difference. A medical professional should admit to the patient when they do not understand something and when they lack all answers. Sixth, a medical professional should strive to be accessible to their patients. Even if he or she may have other patients to attend to, it is important to assure the patients who need care that they will be attended to after caring for the others. Finally, though not trivial, a medical practitioner should keep up to date with their tasks in a professional way. They should be conscious of what they can do and do it effectively just as they should also be aware of what they cannot be able to do and not engage in it. Succinctly put, they should learn how to be honest with themselves (Malpani, 2005, p.207). Conclusion Medical malpractice is the negligence of a medical practitioner’s professional role. It may include lack of diagnosing, misdiagnosing, or not carrying out a treatment process on time. On the other hand, informed consent arises when a medical practitioner discloses all material information regarding the treatment procedure, its risks, and alternatives to the patient who is then expected to give the practitioner consent to administer the treatment based on this information. Material information given by the health provider is supposed to be plausible enough the way another practitioner would have given it under similar conditions. Consent from the patient is supposed to be voluntary. The competence of the patient is based on their cognitive capability and there are some exceptions to the need for informed consent. Finally, mitigation of medical malpractices can be achieved through insurance, good documentation and other personal attributes such as honesty, openness, and accessibility among others. References Department of health. (2006). Delivering a Healthy WA. Correct patient, correct procedure and correct site policy and guidelines for western Australian health services. Retrieved December 10, 2010 from http://www.safetyandquality.health.wa.gov.au/docs/correct_psp/Correct_Patient_Policy_and_Guidelines_Final.pdf. Emmanuel, S. (2007). Torts Caselines Suitable Courses. NY: Aspen Publishers. Kaufman, H. et al. (2007). Michigan Cases of informed consent in Medical Malpractices. IL: Elsevier Health Sciences. Larson, A. (2010). Medical Malpractice Law and Litigation. Retrieved December 10, 2010 from http://www.expertlaw.com/library/malpractice/malpractice.html Macbeth, et al. (1994). Legal and Risk Management Issues in the Practice of Psychiatry. Washington D.C: psychiatrists’ Purchasing group. Malpani, A. (2005). Successful Medical Practice: Winning Strategies for Doctors. New Delhi: UBS Publishers. Maurer, F. A., and Smith, C. M. (2005). Community/Public Health Nursing Practice. IL: Elsevier Health Sciences. Melnick, V. J. and Dubler, N. (1985). Alzheimers dementia: dilemmas in clinical research. New Jersey: The Humana Press. Morissette, E. L. (2008). Personal Injury and the Law of Torts for Paralegals. NY: Aspen publishers. Simon, R. I. and Shuman, D. W. (2007). Clinical Manual of Psychiatry and Law. American Psychiatric Publishing. Read More