Informed Consent and Elective Procedures
By Paul Weber, JD, OMIC Risk Manager [Digest, Fall 2001]
The majority of ophthalmologists at a recent OMIC risk management seminar (73%) agreed that elective surgery patients are more likely to sue their surgeon than other patients. Of the more than 300 ophthalmologists in attendance, 64% agreed that physicians have legal duty to determine if an elective surgery patient has “realistic expectations” of what surgery can accomplish. Why do patients who undergo elective surgery seem to present a greater liability risk than other patients? What steps can be taken during the informed consent process to better understand these patients’ expectations?
Q What characteristics of elective surgery patients impact the informed consent process?
A Elective surgery patients rarely have a vision threatening condition or compelling clinical reason to undergo the procedure. If things go wrong, it is not unusual for them to claim that the ophthalmologist persuaded or cajoled them into having surgery. Ask elective surgery patients to write on the informed consent document or in the chart itself their own personal reasons for having surgery. This helps them acknowledge their primary role in the decision-making process and makes it difficult for them to later claim that the only reason they went forward with the surgery was because of the “undue influence” of the ophthalmologist and staff. Another factor that distinguishes elective surgery patients is that most elective procedures are not covered by health insurance so patients pay out of pocket. This can become problematic if the patient needs an enhancement or revision after the initial surgery. The informed consent process document should specifically state the possibility of future procedures (enhancements/revisions) to get the desired result or to deal with the complications. The fact that there will be additional costs associated with further treatment should be addressed and documented before embarking upon any elective surgery.
Q What impact does advertising have on informed consent?
A Your own advertising and marketing materials will be brought into court if a lawsuit arises. If a statement in your ad conflicts with your informed consent document, that conflict will be raised as evidence that the patient was not properly informed. OMIC considers refractive surgery advertising such a potentially problematic issue that as part of being underwritten for refractive procedures, insureds must submit their advertising and marketing materials to OMIC for review prior to publication. Insureds who have questions about the appropriateness of their advertising should contact the Risk Management Department at (800) 562-6642, ext. 652.
Q How can I determine if a patient has unrealistic expectations?
A There is no substitute for spending time with a patient to find out what he or she expects from surgery. One busy refractive surgeon makes it a point to ask each patient, “What is the most important thing about your vision?” This helps him to determine if he can deliver what the patient wants. During one pre-LASIK interview of a seemingly perfect candidate, a 58-year old -6.00 D, he discovered that the patient’s favorite hobby was tying flies and that he had won championships in it. To tie them, he had to take off his glasses and work about eight inches in front of his face. When asked what he considered especially important about his vision, the patient replied, “I really like how good my vision is right here.” Had they not had this discussion, this important fact would not have been revealed and the surgeon could have been exposed to a claim of failure to provide informed consent if the patient lost his vision after LASIK.
Q Is there a duty to inform the patient about how postoperative care will be handled?
A Postoperative co-management issues often arise in the context of refractive surgery. If it is known in advance that some portion of the postoperative care will be handled by another provider, this should be communicated to the patient. Many times, a patient chooses to have an elective procedure performed by a particular surgeon and has the reasonable expectation that the surgeon will handle the postoperative care. When this is not the case, the patient may be disappointed and upset, especially if there is a complication or concern about the result. Prior to surgery, the patient should understand and consent to the handling of postoperative care by health care providers other than the surgeon.
Q How should informed consent be handled for off-label procedures?
A It is not uncommon for refractive and cosmetic surgeons to use a drug or device in a manner that has not been approved by the FDA. In such cases, the patient should be informed of the nature of the technique, its scientific basis, its benefits, and any possible drawbacks or criticisms from other practitioners. Other options should be discussed, and the patient should be encouraged to seek a second opinion before proceeding.
Charting the Perils of LASIK Comanagement
By Richard F. Callaway, Jr., Esq.
Mr. Callaway is a medical malpractice defense attorney and partner in the Houston law firm of Callaway & Brennig. He represents physicians and other health care providers in professional liability claims. The case study presented is not an OMIC case.
[Digest, Fall, 2002]
Beth, a middle aged woman, had worn glasses since she was six years old. She had tried every brand of contact lens on the market from RGP to extended wear without success. LASIK surgery seemed to be the answer to Beth’s problems. For ten years, she had seen an optometrist for her eye care. She genuinely liked the optometrist, so much so that she sought his care even after she sued him. Over the years, the optometrist had diligently compiled a significant patient history, including annual topographies of Beth’s corneas taken since 1995. Although he was not well trained in their interpretation, he used them to fit Beth’s contact lenses. His inability to interpret topographies was no uncommon given the widespread use of non-standardized topographies. Beth’s topographies were stored electronically on the optometrist’s office computer where they were available in sagittal, tangential, and numeric form, but they were not part of Beth’s chart.
Beth’s optometrist thought she was a good candidate for LASIK. No ocular surface diseases, such as keratoconus, had been detected in any of the optometrist’s regular slit lamp examinations. In 1998, he referred Beth to a highly regarded refractive surgeon for preoperative evaluation. Shortly before the appointment, the optometrist transmitted a brief patient history to the surgeon for the six months preceding the referral using a comanagement form provided by the LASIK center where the surgeon operated. He included Beth’s current refraction, information regarding past visual stability, and topographical maps in numeric form taken two weeks before the referral. The maps, one for each eye, were faxed to the surgeon’s office.
The refractive surgeon performed his own preoperative workup. He checked refraction, measure central corneal thickness, and obtained a history of ocular surface and systemic diseases. All tests were within normal range. Topographies were made using a refractive map and revealed a normal cornea. There was no clinical sign of ocular disease on slit lamp examination. Bilateral simultaneous LASIK surgery performed shortly after the preoperative evaluation. Postoperatively, the patient developed iatrogenic keratectasia. Although Beth’s vision was correctable to 20/25 with RGP, she was contact lens intolerant and eventually had to have bilateral corneal transplants. She soon found a lawyer.
Although Beth had orally consented to comanagement, she had not signed an informed consent acknowledging comanagement. Obviously unhappy with the results of LASIK, Beth sued the optometrist and refractive surgeon alleging, in part, negligent screening and failure to explain the plan to “comanage.” In her suit, Beth maintained she had never consented to and had never fully understood comanagement. There was no written informed consent to contradict Beth.
Worse, after suit was filed, the optometrist produced for the first time his complete patient chart containing more than 125 pages of Beth’s history and four years of successive annual color-coded topographical maps in both tangential and sagittal form. The refractive surgeon was shocked to learn this information existed. He was doubly shocked to see successive annual color-coded topographies in tangential and saggital form that were suggestive of an abnormal cornea. In fact, Beth had subclinical pellucid marginal degeneration that could not be detected in the surgeon’s preop workup. Now that suit had been filed, Beth’s entire history came into play.
Comanagement’s Impact on Litigation
In any LASIK lawsuit, comanagement is the simplest issue for lawyers to understand and master. So much has been written about the comanagement question by the American Academy of Ophthalmology and the American Society of Cataract and Refractive Surgeons (ASCRS) that lawyers now have a formidable armamentarium of issues and conflicts to exploit. While technical violation of the ethical suggestions and standards contained in the AAO/ASCRS Joint Position Paper may not equate to a violation of the standard of care, the danger is that the issue will get before the jury were the impact can be devastating.
Discovery regarding a patient’s allegations of comanagement leads, inevitably, to a veritable host of litigation horrors, including requests to produce information from patient files concerning fee allocations for the services rendered; inquiries into corresponding increases in comanagement fee and patient load; investigation of the practice protocols of the comanaging optometrist and refractive surgeon; depositions of principals and office personnel; evaluation of the quality and quantity of information in patient charts; and comparison of the surgeon’s comanagement fees with those of other surgeons in the are. The danger in any suit is that the refractive surgeon and the optometrist may be thought of as each other’s agent, as a single entity, or as joint venturers. Liability may attach to the refractive surgeon who has met the standard of care for no reason other than that the comanager is not knowledgeable about recognizing and treating post-LASIK complications or in interpreting preoperative topographies.
Comanagement Chart Audit
To determine the quality and quantity of information in comanagement files, Callaway & Brennig conducted an audit of 179 files from 48 optometrists who referred patients to refractive surgeons throughout 1998. Files were reviewed for information concerning 1) patient histories, 2) corneal topographies, 3) current and past refraction, and 4) preoperative examination. Many of the optometrist practiced in groups, but the groups appear to have had no standard procedures regarding the transmittal of information. Most comanaging optometrists had attended meetings, either individually or in groups, with the refractive surgeons with whom they comanaged. The surgeon’s desire to acquire “all relevant information” was emphasized at all times. Similar requests to furnish “relevant information” were made to office personnel. There was frequent mention of the need for records and conversations between the respective offices of the refractive surgeons and the comanaging optometrists.
Patient Histories
Only 17 of the 170 files contained any historical information about the patient. It has been estimated that the decision to undergo LASIK surgery is an eight-month process from initial consideration to the date of surgery, suggesting there is more patient history in the optometrists’ records than is being sent to the surgeons. The refractive surgeon cannot know whether records exist in a comanagement arrangement; all the surgeon can do is request records.
Corneal Topographies
Of 179 files, 71 (40%) contained topographical maps, 60 of which were of little additional diagnostic value to the surgeon because they were taken less than a month before LASIK surgery. Only 11 charts had corneal topographies more than a month old. More important, the vast majority of topographies (60) were faxed to the referring surgeon, rendering their color-coded features impossible to interpret when they emerged in black and white from the refractive surgeon’s fax machine. Only 10 charts contained color maps; from a historical perspective, these maps were not useful for comparison and detection of abnormality since they were taken within a month of surgery. Only one chart contained a color topographical map that had been made more than a month prior to surgery. Further complicating the problem, review of the files revealed that relatively few comanaging optometrists used topographical maps and scales that were consistent with those used for preoperative evaluation by the refractive surgeon.
One good preoperative topographical map, made by a well-trained person using a good machine, is almost always adequate to detect pathology. For that reason, a long series of topographical maps is not needed to detect most pathologies. The refractive surgeon should do a topographical map as part of the preop evaluation. Where the optometrist has also made topographical maps, those topographies should be transmitted to the surgeon before the preop exam in a form that is legible and with real diagnostic value.
Current and Past Refraction
While 163 files contained information on current, refraction, only 12 supplied information on past refraction. This is a serious omission because stable refraction is a fundamental requirement for LASIK. In the absence of historical information regarding past stable refraction, the refractive surgeon must depend solely on the patient’s word that his or her spectacle prescription has not changed within the last two years.
Preop Exam and Information Sharing
Half of the 179 charts contained information regarding a preoperative examination. It is probable that most optometrists performed slit lamp examinations, but they failed to document those examinations in information sent to the refractive surgeon. Compounding this lack of information sharing was the fact that bilateral simultaneous LASIK generally occurred within a week of the preoperative evaluation by the optometrist, which often was not enough time for the surgeon to receive the patient’s file form the optometrist.
No one can anticipate all the contingencies that might arise in a comanagement arrangement, but standardized procedures designed to ensure the transmittal of relevant patient information would improve comanagement, benefit that patient, and in the event of litigation, assist the comanager and counsel in defending claims of negligent comanagement.
Beth’s case was settled, so we will never knowing if the jury would have penalized the refractive surgeon for not know that a voluminous ten-year chart, including topographical maps stored on computer, existed in the optometrist’s office.
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Protocol for Comanagement of Refractive Patients
The following SLEDOG Protocol for comanaging optometrists and refractive surgeons was developed by Callaway & Brennig
Simple mandatory procedures should be followed and shared with the comanaging optometrist. Each comanager should sign off on the following: refraction, central corneal thickness, pupil size (and how it is measured), ocular surface/systemic diseases, and topography. The refractive surgeon must see the patient for the first postop visit and be clear about the subsequent postop care to be provided by the optometrist.
Letters to comanaging optometrists should be written at the time of referral to request all relevant patient information. Such letters document that a system is in place to retrieve patient information.
Emphasize these simple mandatory procedures at meetings with comanaging optometrists.
Document your file. OMIC provides an informed consent form specifically for comanagement situations. The form simply requires the patient to acknowledge the comanagement arrangement.
Office personnel continuity should be maintained at all costs. Not only can a disgruntled former employee significantly strengthen a plaintiff’s case, but an office in turmoil is one that makes mistakes.
Give specific persons in your office responsibility for obtaining information about patients who have been referred by comanaging optometrists. While everyone should be generally aware of your simple mandatory procedures, designate one or two employees with specific responsibility for obtaining records. If a lawsuit is ever filed, their testimony will play better before the jury than the testimony of several employees, none of whom is completely familiar with your procedures and process.
Informed Consent for Refractive Surgery
By Richard L. Abbott, MD
[Refractive Eyecare for Ophthalmologists, May/June 1998]
We often talk about “the” informed consent as if it were a single document that patients sign prior to undergoing a procedure like refractive surgery. A much more valuable way to envision informed consent is as a process that begins when the patient receives any kind of information about the procedure from the physician’s office. Whatever patients subsequently learn from the practice becomes part of the process of informed consent.
The actual form that the patient signs is just the final step in the process. Most courts will find that all those other pieces of information that patients receive including marketing materials, videos, and patient information brochures are admissible as evidence as part of the informed consent.
The Informed Consent Document
The actual informed consent document that patients sign must cover four basic elements:
- Risks associated with the procedure
- The benefits of the procedure
- The complications of the procedure
- Alternative treatments
In addition, the informed consent should have some background information on the procedure and explain what happens in the procedure. These should all be presented in language that the layperson can reasonably be assumed to understand.
The informed consent document for refractive surgery should include a discussion of the advantages of one procedure vs. another (e.g., laser in situ keratomileusis [LASIK] vs. photorefractive keratectomy [PRK]). Important subsidiary issues like bilateral simultaneous surgery vs. sequential surgery also have to be aired. In each case, the advantages and disadvantages to the patient need to be spelled out clearly. The document should present the kind of factual information that will allow the patient to make as informed a decision as possible.
Risks
In refractive surgery, the greatest risk to the patient is that the results of the surgery will not meet his expectations. The procedure isn’t perfect, and wound healing isn’t perfectly predictable. Therefore, patients must be clearly advised that there is some uncertainty as to the outcome of any refractive surgery.
Even if a high percentage of patients are 20/20 following a procedure, there is no assurance that a given patient will obtain that (or any other) result. Patients must know and accept that outcomes are not guaranteed.
Failure to achieve an expected outcome is the greatest risk of refractive surgery. Some of the other relatively common risks that must be covered in an informed consent document are: undercorrection, overcorrection, fluctuating vision, glare, astigmatism, halos, and loss of perceived contrast in low light. These are all fairly common risks that must be explained.
More devastating outcomes, including loss of vision from infection or scarring, are very rare. It is not necessary to present these relatively unlikely possibilities in a frightening way; but patients do need to be informed that – just as they can be hit by a truck when crossing a street – there is a small, but not zero, chance of serious side effect or bad outcome.
LASIK adds some additional risks – tearing the flap, microkeratome failure, infections under the flap, epithelial ingrowth, etc. These are well known risks that can simply be listed, if the patient is to undergo LASIK.
“Off Label” Procedures
As of this writing, LASIK is still an “off label” procedure, and the patient needs to know that. Usually it is sufficient to include a simple statement to the effect that the doctor believes it is in the best interest of the patients to perform LASIK and that LASIK is allowed although it wasn’t specifically approved in the initial FDA review of the laser. This is not a major issue, but the patient should be made aware of it.
Like LASIK, simultaneous bilateral PRK has not received specific FDA approval. This fact should be made known to PRK patients considering a bilateral procedure. For bilateral PRK patients (and for bilateral LASIK patients as well), the informed consent should cover the advantages and risks of simultaneous bilateral surgery vs. waiting for the first eye to heal before operating on the second eye.
Support for Informed Consent
The informed consent document offers the surgeon some protection, even if it is the only thing that he can muster to show that there was a process of informed consent. But the protection will be greater if there is supporting evidence of a process that went beyond the single document, e.g., notes in the chart documenting a discussion between doctor and patient, or the results of a test taken after watching a video.
The protection offered by the informed consent document can be undermined, sometimes greatly, if the practice’s marketing or patient information materials don’t support it. Marketing materials that are very aggressive, that make claims that can’t be substantiated with facts, detract from the informed consent document. Even if the informed consent document is letter perfect and signed by the patient, its value will be diminished if other materials from the practice seem to contradict it. The refractive surgeon’s best protection is to pay attention to all steps of the process.
Timing
Patients need adequate time to consider the informed consent document. Handing the informed consent document to the patient a few minutes before the surgery isn’t enough. The patient should be able to take the document home, read it, perhaps share it with a spouse or friend, and then have an opportunity to ask the doctor questions about it prior to signing.
Giving the informed consent to an unprepared patient on the day of surgery doesn’t give the layperson time enough to grasp its contents. If there is an unsatisfactory result and the patient sues, the hurried circumstances under which the informed consent document was signed will come out in testimony, undercutting the value of the document.
Simply signing the document on the day of surgery is acceptable, if the patient has been given the document for review ahead of time (and this is documented). If the patient is to sign the document on the day of surgery, be sure that the patient is not sedated or dilated until after signing. In general, the patient should not be in any way impaired at the time of signing.
The Surgeon’s Role
Since one wants to be able to rely on it in court, the informed consent document should not be underplayed for the patient. Having a staff person hand the informed consent to the patient with words to the effect of “Please sign this document, it’s just a formality,” will diminish its value. If the risks were glossed over, or if the patient wasn’t given a chance to consider them, the patient may be able to make a credible case that she didn’t know before surgery that her unsatisfactory outcome was possible.
The doctor’s rejoinder that those risks were stated in the informed consent won’t carry much weight if the circumstances in which the document was given to the patient made it seem trivial. Again, informed consent is a process, every step of which should be attended to.
In the last analysis, informed consent is the responsibility of the surgeon. Videotapes, true/false tests, refractive surgery coordinators, and the like can all be important parts of the patient education process. But ultimately there needs to be a face-to-face meeting with the surgeon – even if it’s for a very short period of time. At this meeting the surgeon can ask: “Are there any questions that I can answer?”
Although it may be brief, the patient-surgeon meeting should be a real meeting in which an unsedated patient is free to ask questions. The face-to-face meeting should be documented. A first meeting in the surgery suite with the surgeon peering over the microscope to introduce himself and ask if there are any questions will not bolster the surgeon’s case in court.
Making Your Case
Most of the time nothing goes wrong, and most patients are happy with their result; but it takes just one incident to create a protracted period of difficulty for the refractive surgeon. Since the day-to-day reality is that little goes wrong, it is easy to let one’s defenses down. An ongoing process of informed consent, with clear documentation, should be built into the office routine. Good documentation of an adequate informed consent process makes defense of court cases much easier.
A surgeon’s case will get a strong boost if the chart has notes in the surgeon’s handwriting documenting his part in the informed consent process. This need not be elaborate. All that is required is a few brief sentences such as: “Reviewed informed consent document with patient. Patient understands. All questions were answered to patient’s satisfaction.” That plus a signature provides very useful documentation. If the discussion was more than cursory, a little note on how much time was spent will help, e.g., “15 minutes spent answering questions.”
What Can Weaken a Case?
Just as good documentation will support a case, overly aggressive marketing materials can torpedo it. It is hard to demonstrate that the patient should have been prepared for a less-than-desired result when the practice distributes literature that says things like: “You can throw away your glasses,” or “Guaranteed success.”
It is far easier to mount a good defense when the marketing material is straightforward, honest, and informative, and there is evidence of an educational process that took place over an adequate period of time. The absolute minimum time is probably 2 days. A 2-day process will give the patient at least one night to absorb the material and discuss it with a spouse or a friend. If on the next day the patient has an opportunity to ask questions of the surgeon prior to surgery, and if all this is carefully documented, the process is probably adequate.
Problems happen when the patient feels railroaded through the process with no real chance to understand the surgery or its risks. Unless there is a comanager handling the case, it is especially important that the patient have a chance to meet the surgeon and ask questions prior to the day of surgery.
A poor informed consent process is no liability when the surgical result meets the patient’s expectations. But when a patient’s expectations aren’t met, and the patient feels that there was no real communication with the surgeon, anger and lawsuits can happen. The rule is simple: poor communication leads to anger when there’s a bad outcome.
Comanagement
There are several important points about the comanagement situation. First of all, the patient must understand in advance how care will be divided. The comanaging ophthalmologist (or optometrist) must provide the pre- and postoperative care, but the refractive surgeon will be responsible for the actual procedure. The informed consent documents must clearly identify the participants and delineate their roles.
Although the refractive surgeon bears the ultimate responsibility for the surgery, both the surgeon and the comanaging ophthalmologist should have their own informed consent documents. The comanaging ophthalmologist’s document can be less elaborate than the refractive surgeon’s. The comanager’s document can just state his recommendation for the patient, his role in the process, what the procedure entails, and that the patient understands and accepts it.
The refractive surgeon’s document should detail the surgical procedure – including all the basic elements noted above – as well as describe her role and the role of the comanager. The informed consent process can be a joint effort between the refractive surgeon and the comanager. But each should have an informed consent document, and the patient should sign one document in each doctor’s office.
Even in a comanagement situation, the refractive surgeon needs to have a face-to-face meeting with the patient prior to their coming together in the surgery suite. At this meeting, the surgeon can introduce herself, be assured that the patient is adequately prepared, and ask if the patient has any additional questions. This meeting should take place prior to sedation or dilation. The informed consent can be signed at the end of the meeting.
Even though much of the informed consent process took place in the comanaging ophthalmologist’s office, the meeting between the patient and the refractive surgeon is important. The patient has to feel totally at ease with the surgeon, and the surgeon has to know that the informed consent done at the comanager’s office was thorough and well presented.
Conclusion
Informed consent is a very important piece of protection for refractive surgeons and comanaging ophthalmologists. But it is more than that. From an ethical and good practice point of view, as well as from a purely defensive standpoint, it’s important that patients be educated and understand what they are choosing.
A patient who has been brought into the decision process knows the risks and is less likely to believe he has reason to sue. The patients who sue are often the ones who feel abused by an uncaring surgeon who kept them in the dark. The very process of talking to the patients, of taking their concerns seriously, changes the atmosphere and reduces the chance of legal action.
Amblyopia Risk Reduction: Download Recommendations, Treatment Agreement, and Referral Report
Medical malpractice lawsuits for negligent treatment of amblyopia are infrequent, but the risk to the pediatric patient’s vision is extreme. If not treated appropriately by age nine, the child can have permanent vision loss. The main risk issue is noncompliance with patching and follow-up appointments.
See OMIC’s risk management recommendation guide below.
Amblyopia Risk Reduction
See OMIC’s sample treatment agreement, and referral report below.
Sample Amblyopia Treatment Agreement and Referral Report
Informed Consent for Minor Patients
By Paul Weber, JD
OMIC Risk Manager
[Digest, Summer, 1999]
The law authorizes parent(s) or guardian(s) of a minor (anyone under the age of 18) to give informed consent for most medical decisions on behalf of the child. Claims by parents alleging treatment of a minor patient without the consent of the parent are relatively rare. OMIC has never handled a claim involving this legal issue, yet questions have come up from insureds concerning informed consent and treatment of minor patients. Laws vary from state to state, but here is a general approach to the situation.
Q Do minors who are undergoing a series of treatments need a signed parental consent each time they are seen at the office?
A If a minor patient needs a series of treatments or exams, it is strongly advised that the parent/guardian sign a consent form prior to the first treatment stating that the minor patient can be treated and examined by the ophthalmologist and staff even if the minor patient is not accompanied by an adult. Of course, if the nature of the treatment or exam changes, a new consent must be obtained.
Q Do both parents have to agree to a proposed treatment/procedure?
A For most medical procedures, it is sufficient to obtain the consent of one parent (in an intact married couple). However, if treatment poses a significant risk to the minor or violates the personal or religious beliefs of one or both parents, it is advisable to obtain the consent of both parents. If the parents disagree about the advisability of the procedure, and the dispute cannot be resolved, it may be necessary for a juvenile court to intervene.
Q Who can give consent when parents are divorced?
A If the parents share joint legal custody, they “share” the right to make health care decisions for their child. Either parent alone may consent to a recommended medical procedure unless the court issuing the order of joint legal custody has specified that the consent of both parents is required for certain, or all, medical decisions. If parents have joint legal custody and are unable to agree about treatment, it may be necessary to obtain a court order before treatment is provided unless there is an emergency. If a parent has sole legal custody, that parent has the sole legal right to make health care decisions for the child.
Q Do legal guardians have the same rights as parents to give consent to treat a minor?
A A legal guardian has the same authority to consent to medical treatment for a minor as a parent would have.
Q Can a stepparent give consent for a minor?
A A stepparent does not have the authority to give legal consent to medical treatment for a minor stepchild unless the stepparent has legally adopted the child or been designated a legal guardian.
Q Can a foster parent give consent for a minor patient?
A A foster parent may legally give consent to “ordinary” medical and dental treatment for the child, including immunizations, physical exams, and x-rays.
Q In what situations can minors be treated if their parents or guardian are unavailable?
A An emergency exception may apply to permit examination and treatment of minors requiring immediate services for alleviation of severe pain or immediate diagnosis and treatment of unforeseeable medical conditions, which if not immediately diagnosed and treated, would lead to serious disability or death. Some state education codes establish qualified immunity for physicians who treat school children during regular school hours for emergency treatment.
Also, a child’s parents or legal guardians may sign a statement authorizing a third party to consent to medical care in the event the child or child’s parents (guardians) will be away from home, such as during vacations. A copy of the authorization signed by the parents or legal guardian should be retained with the child’s medical records.
Q Are there any exceptions to minors consenting for themselves?
A Some exceptions exist to allow minors to consent to their own treatment; for example, married or divorced minors, minors on active duty in the armed forces, and minors “emancipated” by a court order.
If you have an informed consent question involving a minor patient, please contact Paul Weber at (800) 562-6642, ext. 603 or pweber@omic.com, or fax your question to the Risk Management Hotline at (415) 771-7087.
