Help me;O : Consent in health law

[johwen93]

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!:)

[MunoRN, RN]

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"

[johwen93]

OP=Original Poster. You wrote the beginning post in the thread, so you are the "OP"

Ohh! Now i know! Thanks ! Hehe í ¾í´—

[johwen93]

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

Thank you for the link. ! It helps alot !

[hppygr8ful, ASN, RN, EMT-I]

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.

I have two lawyers in my family and asked the one who was a prosecutor what she thought of this. She said that since the patient died it could be considered Criminal Manslaughter and the surgeon could go to prison but the DA would have to feel very confident of a win. They would have to prove that the patient died due to the procedure and not any underlying disease process. The Dr. did have a duty to protect this patient as did the nurse who could also be prosecuted. I have never been in this situation but I would think/hope that I would follow my duty to protect a confused patient and real advocate for a later date or recuse my self from performing the consent process.

Hppy

[johwen93]

I have two lawyers in my family and asked the one who was a prosecutor what she thought of this. She said that since the patient died it could be considered Criminal Manslaughter and the surgeon could go to prison but the DA would have to feel very confident of a win. They would have to prove that the patient died due to the procedure and not any underlying disease process. The Dr. did have a duty to protect this patient as did the nurse who could also be prosecuted. I have never been in this situation but I would think/hope that I would follow my duty to protect a confused patient and real advocate for a later date or recuse my self from performing the consent process.

Hppy

Thank you for your information! Really appreciated it! :) :)