Risk Management

Refused Care Coverage and Minor Refusal

Kimberly Wynkoop, OMIC Legal Counsel

Digest, Winter 2013

As the lead article addresses, there are situations where patients refuse care, their vision is adversely affected, and then they sue their ophthalmologist for failing to treat them. Rest assured that OMIC’s policy provides coverage for such allegations. OMIC promises to defend ophthalmologists and pay damages because of claims that result from injury to a patient because of a “professional services incident” arising from “direct patient treatment.” The policy defines direct patient treatment as the provision of health care services to a patient, including making diagnoses, providing medical or surgical treatment, prescribing or dispensing drugs or medical supplies or devices, rendering opinions to a patient, giving advice to a patient, or referring a patient to, or consulting about a patient with, another physician or health care provider. A professional services incident is any act, error, or omission, that is neither intended nor expected in the provision of, or the failure to provide, direct patient treatment. Coverage for omissions and failure to provide direct patient treatment is an important component of your professional liability coverage, as failure to treat can be the alleged breach of duty that triggers a negligence claim.

Minor refusal of care

Adult patients have the legal right to refuse recommended care as long as they have decision-making capacity. Minor patients, on the other hand, lacking the necessary experience, knowledge, and maturity, are generally considered incompetent to make their own decisions and are not granted the legal authority to consent to or refuse care. Legal decision-making authority is generally achieved only when an individual reaches the age of majority, 18 years of age (or after high school graduation if later) in all but four states. There are two traditional categories of exceptions to the age of majority requirement for consent: individual status and medical service. Minor patients whose status indicates that they function as adults are granted the right to consent to or refuse treatment. Such status exceptions, which vary by state, include marriage, being a parent of a child, active duty with the Armed Forces, and court ordered emancipation. Another status exception, recognized in California, is self-sufficiency: when a minor is 15 years of age or older, lives away from home, and manages his or her own financial affairs. Service exceptions occur when minors seek specific treatment for certain medical conditions, such as pregnancy, mental health problems, alcohol or drug dependency, or infectious diseases. The rationale for such exceptions is that minors will be more likely to seek treatment for sensitive health issues if they are not required to notify their parents.

Mature minor doctrine

While courts and legislators have struggled with the issue of when to permit minors to legally consent to medical treatment, they have had even more difficulty when the medical decision-making at issue is refused care. Cases often involving refused care have led to the development of the third exception to the majority requirement for consent, the “mature minor” doctrine. This doctrine recognizes that some minors are mature enough to evaluate treatment options and make their own decisions. Courts look at individual circumstances and factors including the minor’s age, behavior, education, competence, and knowledge. They must weigh the state’s rights and responsibilities to preserve the life of a minor and maintain the ethical integrity of the medical profession, the minor’s rights to autonomy and privacy (and, in some cases, religious freedom), and, if the parents’ wishes conflict with the child’s, the rights of the parents to make decisions for their children. The doctrine lacks clear principles for application, however, and varies from state to state (with many states having not addressed the issue yet and at least one state, Georgia, specifically refusing to apply the doctrine). For example, in Illinois, a mature minor can refuse medical treatment unless such refusal would threaten the child’s health or welfare, while Virginia (by legislation) permits a minor 14 years or older to refuse, with parental acquiescence, medical treatment even for a life-threatening disease. Not all state laws are clear on consent and refusal of care and physicians often have to make decisions before getting a court order or legal determination. Therefore, even if minors have the authority to consent to treatment, it is prudent, with the patient’s permission, to involve the parents in the discussion. Likewise, in cases where minors do not legally have decision-making authority (e.g., for most ophthalmic treatment), it is recommended that ophthalmologists obtain minor assent in addition to parental consent for or refusal of treatment. Insureds are encouraged to seek risk management advice on refusal of care through OMIC’s confidential risk management hotline at 800. 562.6642, option 4, or by email at riskmanagement@omic.com.

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