Help me;O : Consent in health law

  1. Hello
    i wanted to ask regarding consent for medical procedure.

    scenario is,
    this patient keen for a cosmetic surgery. But it seems that this patient is confused on the time when the doctor discussed with her. but anyway even the doctor know that patient is confused (due to some reason as suspect she's having illness that affects her capacity on that time) and even the patient's spouse suggested the doctor maybe should postpone the procedure until patient is turn to normal, the doctor reassured the spouse everything will be okay as the patient indicated that she is keen for the procedure.

    but the thing is, after the doctor left, the patient ask the spouse where is she.. the spouse tell her at where and will do a cosmetic surgery that she want...
    and, a staff nurse notice consent haven't been sign but patient already put into sleep so she ask the spouse to sign the consent for her. He signed.

    at the end, patient died due to post op infection and sepsis.
    so the spouse wanted to sue the Dr as she proceed with the procedure when the dr already knew she's not well.
    -------

    so i want to know, is it okay for a spouse to sign for them? As in for cosmetic procedure (eg. Abdominoplasty).. what i know is if someone has to sign on behalf for this person, they need to have POA to sign (other than court/mental act)

    my answer is:
    -the Dr shouldn't proceed the procedure if she knew patient is confused. She didn't give a valid consent to patient (element of valid consent).
    -the Dr will be found guilty for criminal law battery (?) and consent is not valid ..

    #sorry for my messed up grammar..
    #please correct me
    #im still trying to understand health law ethics topic.

    thank you!
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  2. 16 Comments

  3. by   klone
    Are you a student? Is this a question for a class?
  4. by   johwen93
    Yes i am a student
    As I'm not sure , i want to know what are other opinion to my answer. Because there is no right and wrong andwer for this.
  5. by   JKL33
    My only answer is

    even the patient's spouse suggested the doctor maybe should postpone the procedure until patient is turn to normal
    In light of the above, the decision to proceed was quite the foolhardy move...
  6. by   KelRN215
    Forgetting to have the patient sign the consent before putting her under anesthesia is NOT an appropriate reason to have the husband sign the consent for her. This was an elective procedure, not an emergency. The husband could sign if, say, she came in unconscious and was found to have a ruptured brain aneurysm and needed emergent surgery or if he had power of attorney because the courts had deemed the patient incapable of making her own decisions. Though consenting to a cosmetic procedure for someone who has been deemed incapable of making her own decisions may be ethically foggy too. What would the motives behind such a procedure be?
  7. by   Anonymous865
    OP stated that s/he thought the Dr would be found guilty of criminal battery.

    It wouldn't be criminal battery. It would be medical battery.

    Criminal battery would be prosecuted by the district attorney. The penalty would be a fine paid to the state and/or jail time.

    Medical battery is a civil violation. It occurs when a medical professional touches or performs a medical procedure without consent. The patient or family would have to file a lawsuit. The penalty would be financial and paid to the patient or next-of-kin.
  8. by   johwen93
    Quote from KelRN215
    Forgetting to have the patient sign the consent before putting her under anesthesia is NOT an appropriate reason to have the husband sign the consent for her. This was an elective procedure, not an emergency. The husband could sign if, say, she came in unconscious and was found to have a ruptured brain aneurysm and needed emergent surgery or if he had power of attorney because the courts had deemed the patient incapable of making her own decisions. Though consenting to a cosmetic procedure for someone who has been deemed incapable of making her own decisions may be ethically foggy too. What would the motives behind such a procedure be?
    Thank you for explanation
    What I'm trying to figure out for this story is, what type of legal action i can use for the spouse to use to sue the Dr.. is it only battery and invalid consent elements or still has any other legal action the spouse can use as a proof. ( ◠‿◠ )
  9. by   johwen93
    Thank you all
  10. by   johwen93
    Quote from Anonymous865
    OP stated that s/he thought the Dr would be found guilty of criminal battery.

    It wouldn't be criminal battery. It would be medical battery.
    Criminal battery would be prosecuted by the district attorney. The penalty would be a fine paid to the state and/or jail time.

    Medical battery is a civil violation. It occurs when a medical professional touches or performs a medical procedure without consent. The patient or family would have to file a lawsuit. The penalty would be financial and paid to the patient or next-of-kin.
    Oh.. thanks so much! I never thought medical battery and criminal battery is different thing.

    Even if the dr already explain to the patient but forgotten to get the pt to sign a consent and proceed, still can sue as battery? But if the spouse already signed the consent for the pt.. how? .. i know it is not right and valid for the spouse to signed for pt as it is an elective procedure but I don't know the right way to explain the problem.. tq
  11. by   Julius Seizure
    Man, this is a really complicated/convoluted homework question! You seem to be on the right track though, OP.
  12. by   MunoRN
    Quote from Anonymous865
    OP stated that s/he thought the Dr would be found guilty of criminal battery.

    It wouldn't be criminal battery. It would be medical battery.

    Criminal battery would be prosecuted by the district attorney. The penalty would be a fine paid to the state and/or jail time.

    Medical battery is a civil violation. It occurs when a medical professional touches or performs a medical procedure without consent. The patient or family would have to file a lawsuit. The penalty would be financial and paid to the patient or next-of-kin.
    While claims of medical battery are most commonly pursued as civil cases, medical battery is also a subgroup of criminal battery and can be prosecuted as a criminal offense. To pursue medical battery as a civil case only requires establishing that harm was caused, to pursue as a criminal case requires proving criminal intent which typically harder to do than just proving harm.

    http://biotech.law.lsu.edu/map/BatteryNoConsent.html
  13. by   johwen93
    Hye may i knoe does OP stand for cuz I've been noticed everyone here using the OP..is it operation.....? Thank you
  14. by   MunoRN
    Quote from johwen93
    Hye may i knoe does OP stand for cuz I've been noticed everyone here using the OP..is it operation.....? Thank you
    OP=Original Poster. You wrote the beginning post in the thread, so you are the "OP"

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