Informed consent: Know rules and exceptions, when they apply

By Bryan A. Liang, MD, PhD, JD, John and Rebecca Moores Professor and Director pro tempore, Health Law & and Policy Institute, University of Houston Law Center; Adjunct Professor of Medical Humanities, Institute for Medical Humanities, University of Texas Medical Branch, Galveston.

Editor’s note: Emergency practitioners must understand patients’ rights regarding informed consent. Rapid diagnosis and treatment can be lifesaving, and any delay in obtaining consent may have devastating consequences to the patient. Emergency physicians have an obligation to make decisive and rapid treatment decisions. In addition, they must know when patients can refuse treatment and when consent is not needed. Finally, patients can and do refuse treatments that may be lifesaving. The emergency physician must ensure that the patient is competent to make these decisions. A mistake will bring the wrath of disgruntled family members who undoubtedly will bring suit for negligence. This issue of ED Legal Letter illustrates the issues that emergency physicians encounter regarding informed consent and the exceptions that may apply.

Introduction

Informed consent is a legal requirement applicable to all medical care. Physicians who provide services to patients are compelled, ethically and morally, to allow patients to make their own health care decisions based upon all material information available. The concept is derived from the ideal that each patient has a right to determine what is done to his or her body.1

Of course, this concept also applies to emergency medicine and patients who present to the emergency department (ED). However, there are circumstances unique to the ED that may obviate the need for obtaining standard informed consent. These issues are reviewed below after a brief overview of informed consent doctrine.2

The Rule

Factors to Disclose. There are a variety of laws, usually state-based, on informed consent and the specific requirements that must be fulfilled when obtaining consent from patients.3-6 However, across states, basic informed consent generally requires that the patient actually be informed by the provider regarding certain areas associated with the proposed diagnostic and/or treatment modality. This information must be provided in a manner that assures patient comprehension.7

If the patient then knowingly consents to the modality, the provider has obtained valid informed consent and may perform the test or procedure on him or her. Legally, once this informed consent is obtained, the doctrine of volenti non fit injuria (to one who is willing, no wrong is done) applies. Of course, the provider continues to be under an obligation to provide non-negligent treatment to the patient; the physician may be held liable for lack of informed consent even when he or she treats the patient completely appropriately.8-9 Hence, it should be noted that lack of informed consent actions against a provider is separate from medical malpractice causes of action, although both are tried under the negligence rule.10

There are two generally recognized standards of informed consent. The professional, provider-centered form requires discussion of information that a reasonable provider in good standing in a similar clinical circumstance would provide.11 The patient-centered form requires discussion of information that a reasonable patient in a similar clinical circumstance would desire.12 The professional, provider-centered standard appears to be the majority standard in the United States.2 However, under either standard, informed consent usually requires the practitioner to disclose the following information to the patient to fulfill his or her duty under the doctrine:

Diagnosis. Generally, the physician must provide the patient with his or her diagnosis, and/or any steps that need to be taken to determine the diagnosis, if relevant.

Nature of proposed treatment or diagnostic strategy. The physician also must provide information of what the proposed treatment will be and/or the strategy proposed to obtain it, including the probability of success, as relevant.

Medically recognized alternative measures. It is important that the physician in any informed consent discussion provide information on medically recognized alternative measures that could be performed other than the proposed treatment or diagnostic strategy, even if the physician feels these alternatives are less desirable. This factor is critical, since it allows the patient to be informed about what other alternatives are available so he or she can make a truly informed decision regarding what may happen to his or her body. Note that nonmedically recognized alternatives, such as unproven treatment, need not be disclosed. However, there may be an obligation to discuss possible experimental treatment if the information is readily available to a provider using reasonable efforts.

Consequences of declining or refusing treatment. Critically, the physician cannot simply discuss treatment or diagnostic modalities that he or she is offering to the patient. The physician also generally is obligated to discuss and disclose to the patient the consequences of his or her declining or refusing care. Hence, the physician expressly should discuss with the patient the consequences of doing nothing.

The information discussed and disclosed to the patient must be in language that the patient understands; otherwise, the consent is not considered informed.10 Note that providers who obtain informed consent should be particularly sensitive to the needs of patients for whom English is not their first language; use of translators may be necessary.13 It should be emphasized that consent is not obtained merely by having the consent form signed. If the patient does not understand the information, or has not had an opportunity to discuss the information, informed consent may not exist and providers may not have fulfilled their legal duty to the patient under these circumstances. As such, providers may be liable to the patient for unauthorized treatment, or even battery,14-17 which may include punitive damages against the provider.10

Limits and Materiality’

Limits. There are certain legally recognized limits to the doctrine of informed consent. Physicians are not required to disclose each and every risk, however remote, associated with a medical procedure or treatment modality.18-20 Further, physicians are not required to disclose risks that are considered obvious to the patient or considered common knowledge, such as the risk of infection after a surgical procedure,21 nor risks of which the provider could not have been aware22 or that were not foreseeable.23 It should be noted, however, that at least some courts have held that medication side effects require disclosure even when the probability of their occurrence is objectively minute.24

Materiality. The law generally requires only disclosure of those factors and risks that are deemed "material," usually judged by the severity or seriousness of the potential harm and the chance of its occurrence.25,26 In one case, material information for informed consent purposes was noted to be:

"[T]hat which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure. To be material, a fact must also be one which is not commonly appreciated."27

Hence, the definition of materiality is an objective one, using a reasonable person as the standard; the physician need only discuss that which would be considered material to such a reasonable person. However, some courts go further and impute some subjectivity. For example, with regard to a specific patient, one court wrote:

"If the physician knows or should know of a patient’s unique concerns or lack of familiarity with medical procedures, this may expand the scope of required disclosure."27

Overall, physicians must discuss all material risks but should consider each patient’s needs when obtaining informed consent.

Exceptions for the ED

The general rule with regard to informed consent in an emergency circumstance is that the standard informed consent rule still applies to cogent, conscious adults who require treatment.28,29 However, in most other situations in the ED, informed consent is presumed for the patient. In other words, the patient is presumed to have consented to any and all relevant, medically appropriate care that should be provided to treat the emergent situation at hand. This presumption reflects the law’s acknowledgment that mechanically applying the standard rule of informed consent before any treatment would seriously undermine the health, safety, and life of any patient who requires emergency treatment but cannot provide informed consent for it. A typical state statute indicating this policy states that, in the emergent circumstance:

"A [physician] shall not be liable for civil damages for injury or death caused in an emergency situation occurring in the [physician’s] office or in a hospital on account of a failure to inform a patient of the possible consequences of a medical procedure . . ."30

The Minor Patient

In nonemergent circumstances, physicians must obtain informed consent for treating children just as they do before treating adults. Usually, a parent or guardian provides informed consent on the behalf of a minor child.31,32

However, in an emergency situation, there is no need to obtain informed consent from a parent or guardian before treating a child with a life-threatening condition.33 The potential harm to the child in the emergency circumstance must be immediate and imminent for the exception to apply. Otherwise, the standard requirement of obtaining informed consent—and parental consent — generally attends.

Note, however, that pediatric patients are covered by the federal Emergency Medical Treatment and Labor Act (EMTALA), which pre-empts state law and requires a medical screening examination and stabilization of the patient. In this situation, the pediatric patient is to be provided with this examination and stabilization without parental consent. Once the medical provider determines there is no immediate and imminent harm, the provider should seek parental informed consent.34

Note that a minor in some circumstances may be treated as an adult. When a child fulfills the "mature minor" exception, the child may provide his or her own informed consent in emergency situations, without the need to consult parents or guardians.35,36 The child in these circumstances must be of the appropriate age and maturity to understand the nature of the emergency, the proposed treatment for it, and treatment alternatives. Specific requirements are based on state law, and prudent providers should familiarize themselves with the relevant state requirements when applying the exception.

Case #1: An Emergency with Potential for Immediate and Imminent Harm. A 17-year-old male jumped from a moving train in an effort to reach the train track’s embankment, but was caught on an iron step and dragged approximately 80 feet while protruding from behind the train car.

Upon examination after he arrived at the hospital, he was found to have a crushed elbow joint and a two- to three-inch scalp laceration, from which he was bleeding profusely. The patient was in significant pain, and subsequently was sent to the operating room and anesthetized so that the physicians could treat the bleeding from the open wound. After being anesthetized, the patient was more easily examined and was found to require immediate arm amputation because of the danger the injury posed to his life.

On the basis of this examination and conclusion, the physicians amputated the patient’s arm. After the amputation, recovery, and discharge, the child and his parents brought suit against the treating physicians on the theory that the procedure was performed without their informed consent.

The court held for the defendant physicians. The court indicated that the physicians were placed in a position of going forward immediately to save the patient’s life, or bringing the patient out of his anesthetic state to attempt to obtain consent from the patient and his parents for the amputation. These further actions, as well as additional actions that would have been required, would have placed the patient at additional risk of other potential complications, particularly shock, due to a necessary second anesthesia induction. The court held that faced with such a circumstance, the physicians acted to address the life-threatening emergency to the child both appropriately and correctly, noting:

"[I]f a surgeon is confronted with an emergency which endangers the life or health of the patient, it is his [or her] duty to do that which the occasion demands within the usual and customary practice among physicians and surgeons . . . without the consent of the patient."37

Because of the immediate and imminent nature of the potential threat to the patient’s life without emergency treatment, the court then dismissed the claim by the patient and his parents against the providers for lack of informed consent.

Case #2: An Emergency without Potential for Immediate and Imminent Harm. A 14-year-old boy was injured when the car in which he was riding with his parents was involved in a motor vehicle accident. He was taken to the local ED, where a physician examined his right leg and found that the leg was "crushed and mangled; that the muscles, blood vessels, and nerves were torn and some of the nerves severed, and that the foot ha[d] no circulation." After assessment, the examining surgeon amputated the boy’s foot without the permission of his parents. The boy’s parents sued the surgeon on the basis of a lack of informed consent.

The court held for the parents and against the surgeon. Although the court clearly recognized that treatment of a child could occur without informed consent in immediate and imminent harm circumstances, it held that testimony indicated that there was no emergency nor likelihood of immediate or imminent harm in this case. Of particular note was testimony from the boy, who indicated he could still feel and wiggle his toes after the accident and before the amputation, in contradiction to the physician’s testimony. Therefore, the court indicated that because there was no emergency, any exception to the informed consent doctrine was not present, and the surgeon was required to obtain informed consent from the parents before any treatment was provided. Because he did not do so, he violated his duty to secure informed consent, and could be held liable for damages.38

Case #3: Valid Child Consent under the Mature Minor Exception. A 17-year-old female was at the hospital visiting her mother, who had undergone a major surgical procedure and was in a semiconscious state. During the visit, the 17-year-old caught her finger in the hinge of a closing door, severing it. The 17-year-old was taken to the ED. The physician there attempted to contact the 17-year-old’s father, who lived 200 miles away, but his address and other contact information were unavailable. The ED physician treated the 17-year-old after discussing her condition and proposed treatment with her, and the treatment was successful. However, upon awakening and being discharged, the girl’s mother brought suit against the hospital on the basis of a lack of informed consent. The patient’s mother indicated that had her advice been sought, she would have refused consent for her daughter’s treatment until after consulting with her family physician as to the appropriateness of any proposed actions.

The court held for the providers. The court indicated that if the treating physician had waited for the patient’s mother to be fully conscious after her major surgery and then discussed the proposed treatment and procedure with her, the patient would have needlessly had to suffer from her painful injury in the interim. Further, the court indicated that the patient, although a minor, could provide informed consent on the basis of her age, her ability to comprehend the circumstances surrounding the treatment and emergency situation, and her ability to understand the nature and consequences of the chosen procedure. Hence, since she understood the context and ramifications of her decision, she was thus a mature minor for the purposes of this health care decision and, therefore, could validly consent for herself. The court dismissed the claims against the providers for lack of informed consent.

The Conscious, Cogent Adult

Conscious adults under the standard informed consent rule may refuse all treatment, even if that treatment would be life saving; generally, this refusal falls under their right to privacy.39-42 This concept applies in the ED as well.

If the patient is mentally incompetent to make health care decisions, there may be a presumption of informed consent.43,44 In this circumstance, the physician may treat the patient if there is no guardian or other authorized person available to provide informed consent for the incompetent patient.45-47

Case #4: The Conscious Patient’s Refusal of Life-Saving Treatment. A 72-year-old mentally cogent and conscious male had significant chronic disease that was untreated. As a result of his disease processes, both his legs became gangrenous, to a point that they represented a threat to his life. However, upon admission to the ED, the patient indicated that he did not wish any treatment for his condition, regardless of whether it would save his life. The treating hospital and providers were highly concerned, so the hospital applied for a court order to compel the patient to consent to the procedure and have his life saved.

The court held that the hospital could not compel such a procedure for the patient, and denied the hospital’s legal request. The court noted that the patient had a constitutional right to privacy that entitled him to "decide his own future regardless of the absence of a dim prognosis."48 Hence, even though the decision ultimately would lead to his death, the patient had a right to make such a decision, given his mental competency to do so.

It should be noted here that merely to refuse treatment that would be beneficial does not constitute mental incompetence. If a patient is cogent, he or she can refuse any treatment. If there is any doubt as to the mental status of the patient, a mental status examination should be performed. While emergency physicians are trained to determine mental competence, in some circumstances a psychiatric consult may be helpful to determine whether the patient is able to competently make health care decisions.

Mental Incompetence and the Conscious Patient

A much greater challenge regarding informed consent occurs when the patient is conscious but may not accurately comprehend his or her own medical condition and the ramifications of treatment alternatives, including no treatment, to address the condition; the difficult situations usually are represented by patients who may be incompetent due to medications, alcohol, or illicit substances. In these cases, the physician must determine the patient’s mental competence to make health care decisions. Such an assessment should focus on appraising comprehension of information provided to the patient, including:

  • The nature of the patient’s condition;
  • The nature and effect of any proposed treatment;
  • The risks of both pursuing any proposed treatment and not pursuing any proposed treatment;
  • The ability of the patient to apply the provided information to his or her specific circumstance to choose a course that is based on rational and reasonable motivations.49-51

Further, other tests of competence should be engaged, as relevant, including a mini-mental status examination, use of the mental status questionnaire, and/or other tests that may provide insight as to the cognitive function of the patient at the time.52-54

Note that although the above factors and tests represent objective criteria, medical competency is fundamentally a subjective evaluation by the physician, based upon specific factual circumstances that surround the situation and patient. Thus, the physician must examine individualized characteristics of the patient using the above factors as a rubric in his or her efforts to determine a patient’s competency, rather than relying on each individual test result or answer to a specific question in isolation. Relevant consults may be obtained in circumstances that appear doubtful. It should be noted that courts generally grant great deference to physician — particularly psychiatric — evaluation of a patient’s competency if done using standard methods.

If the physician finds that the patient is mentally incompetent, the physician should make all efforts to obtain consent from an alternate source, such as a relative.55 However, if a relative is absent or unavailable, the physician may treat the patient without informed consent if the treatment is in the best interest of the patient.

Case #5: The Possibly Mentally Incompetent Patient. Following a motor vehicle accident, a patient was brought to the ED to obtain treatment. Upon admission, the patient’s blood alcohol level was found to be 0.233, a consequence of having imbibed more than 16 alcoholic beverages.

The ED physicians took a history from the patient, and during this process, the patient complained of pain in the head, eyes, back, and ribs, and blurred vision due to both eyes being filled with blood. On examination, the patient’s physicians became concerned about the extent of the patient’s internal injuries, and indicated to the patient that a diagnostic peritoneal lavage was necessary to obtain information as to the scope of his injuries. The patient adamantly refused.

The physicians then assessed the patient and determined that the patient was incapable of accurately understanding the full extent of his injuries and concluded that he was medically incompetent to make health care decisions or provide (or refuse) informed consent. The physicians then indicated to the patient that in this type of situation, the hospital’s policy was to treat the patient and perform the procedure.

At that point, the patient began yelling and tried to get up to leave. The patient at that point was physically restrained, strapped to a gurney, and given an anesthetic by injection. The peritoneal lavage procedure then was performed. The next morning, the patient left the hospital against medical advice, and then subsequently sued his treating physicians and the hospital for unauthorized treatment and lack of informed consent.

After losing on the trial court level, the providers appealed and the state’s supreme court heard the case. The court held that any determination of whether a patient’s intoxication could render the patient mentally incompetent to provide informed consent is highly dependent on the individual facts and circumstances of each situation. However, the court noted that "a patient’s intoxication may have the propensity to impair the patient’s ability to give informed consent."56

The court indicated that the evaluation of such a potential patient should include whether the patient can understand the medical condition he or she is suffering from, as well as the nature of any proposed medical procedure, including the risks, benefits, and available alternatives. The court then held for the defendant providers by ordering a new trial using the standards set out by the court.

The Unconscious Adult

In virtually all jurisdictions, the need for full informed consent is obviated in emergency situations when the patient is unconscious. This concept applies either when the patient is brought into the ED unconscious or when the patient is unconscious due to anesthesia, with this latter circumstance more legally contestable.

If the possibility of harm due to a failure to treat the patient is immediate, and exceeds any threatened harm from the treatment itself, the provider may treat without informed consent.57-59 Otherwise, without this public policy, irrevocable harm could occur — indeed, even death — if the physician hesitates to treat an unconscious patient due to concerns regarding informed consent.

Case #6: Emergency Situation with an Unconscious Patient—Treatment Allowed. A female patient presented to the ED with significant abdominal pain. She reported previous sexual intercourse and that she was pregnant. Upon emergency examination, she was found to have symptoms of a tubal (ectopic) pregnancy. The patient provided informed consent for removal of the ectopic pregnancy. After induction and anesthesia was performed on the patient, the surgeon discovered that, in fact, the patient did not have an ectopic pregnancy, but instead the symptoms arose from acute appendicitis. The surgeon, upon examining the appendix, concluded that the appendix should be removed immediately in the best interest of the patient, due to the condition of the tissue and potential risks associated with her condition. The surgeon performed an appendectomy at that time, without informed consent from the patient. The surgery was successful and the patient experienced an uneventful recovery. However, upon discharge, the patient refused to pay for her medical care services, indicating that she only granted informed consent for surgery for an ectopic pregnancy, not an appendectomy, and thus the latter procedure was not consented to and hence unauthorized.

The court rejected the patient’s arguments and held for the providers. The court noted that the severity and seriousness of the patient’s condition obviated the need to re-obtain informed consent in the circumstances. As indicated by the court:

"What was the surgeon to do? Should he have left her on the operating table, her abdomen exposed, and gone in search of [a relative] to obtain express authority to remove the appendix? Should he have closed the incision on the inflamed appendix and subjected the patient, pregnant as she was, to the danger of a general spread of poison in her system, or to the alternative danger and shock of a second, independent operation to remove the appendix? Or should he have done what his professional judgment dictated and proceed to remove the offending organ, regarding it as a mere appendage serving no useful physiological function, and causing only trouble, suffering, and oftentimes death?"60

The court then dismissed the patient’s suit, indicating that to insist on traditional informed consent in such circumstances would make physicians "litigation-conscious instead of duty-conscious . . ." 60

Case #7: Emergency Treatment with an Unconscious Patient — Treatment Not Allowed. A female patient required an appendectomy. The surgeon discussed the procedure with her and she then provided informed consent for the procedure. After anesthesia was administered and the surgery begun, the surgeon noted significant disease associated with the patient’s fallopian tubes. This disease state was estimated by the surgeon to potentially result in serious harm or death if not treated within six months. Hence, on the basis of the surgeon’s belief of the appropriate action necessary to pursue the best interests of the patient, he removed the patient’s fallopian tubes without obtaining informed consent from the patient. The patient, after being informed of this additional surgery, sued the provider, claiming that he did not obtain informed consent for the surgery.

The court held for the patient. The court noted that although the surgeon did have authorized, informed consent for the appendectomy, the clinical findings upon surgery did not constitute an emergency. Since the patient’s condition did allow her time to consider treatment alternatives and then to make an informed decision as to which, if any, procedure for the fallopian tubes she wanted, it was not an emergency and the emergency exception did not apply. Because the surgeon did not afford the patient the opportunity to be informed and to consider her treatment options, but instead operated without her informed consent, he was liable for damages associated with performing unauthorized surgery on her.61

Other Issues

The Special Case of Blood Transfusions. Adult Patients. Blood transfusions in emergency circumstances represent a special case for emergency informed consent situations. In general, the standard rule for informed consent applies; if a patient is cogent and refuses transfusion, even to save his or her life, that decision must be respected.62,63

However, the circumstances are significantly complicated if the patient is unconscious and the family will not provide informed consent for blood transfusions due to religious objections (e.g., due to their adherence to the Jehovah’s Witness faith).64 Often a request to the judge on call or other legal authority is necessary to resolve the issue.

Courts faced with these circumstances in the majority of cases have assessed the clinical situation using the standard of "compelling State interest."65,66 Using this standard, a blood transfusion usually is ordered if two circumstances are present in the case at hand:

  1. It is clear that the patient is incompetent to make sound medical decisions at the relevant time.
  2. The patient likely would die without the blood transfusion.

The public policy underlying this reasoning is that the State (i.e., the government) has a compelling interest in preserving life, which outweighs the patient’s religious tenets as expressed by his or her family members.

If a physician is faced with an unconscious patient and family members refuse to consent to a necessary blood transfusion, the physician should contact the facility’s general counsel using the prescribed protocol in the hospital’s policies and procedures manual. In the usual process, it is the hospital’s general counsel who petitions the court or notifies the office of the state attorney to seek a court order to transfuse the patient. In some cases, the legal counsel for the hospital may meet with the judge ex parte (i.e., in a judicial proceeding with only one party of interest present — here, the provider) and receive a written order allowing transfusion at that time.67,68 In other situations, the judge may hold an emergency hearing at the hospital within hours of the request for judicial intervention for the transfusion with both providers and objecting family members present. The judge may sign a court order for the transfusion at that time.69,70

As noted, generally courts will order these transfusions. Some courts go farther, and have indicated that providers need not even make a judicial petition if time does not permit it:

"When the hospital and staff are . . . involuntary hosts and their interests are pitted against the belief of the patient [and his or her family], we think it reasonable to resolve the problem by permitting the hospital and its staff to pursue their functions according to professional standards. The solution sides with life, the conservation of which is, we think, a matter of State interest. A prior application to a court is appropriate if time permits it, although in the nature of the emergency the only question that can be explored satisfactorily is whether death will probably ensue if medical procedures are not followed."65

Note, however, that not all courts take this stand, and providers should determine their state’s laws on this issue.

Pediatric Patients. In the case of pediatric patients for whom parents or guardians refuse blood transfusions to save the child’s life, a majority of courts are much more likely to intervene.71 This result is due to the compelling State interest in preserving the life of a child; even when both the patient and the patient’s parents steadfastly have expressed their refusal of life-saving blood transfusion, generally on the basis of religious beliefs, courts on provider petition have allowed the State to act and have ordered the transfusion to preserve the life of the pediatric patient. As one court indicated, "not even a parent has unbridled discretion to exercise their [sic] religious beliefs when the [S]tate’s interest in preserving the health of the children within its borders weighs in the balance."70

Documentation of Immediate and Imminent Harm. As noted above, immediate and imminent harm is a necessary condition for the emergency provider to treat an unconscious or mentally incompetent patient without his or her informed consent. Hence, providers must be aware that documentation of this condition clearly is requisite to obtaining any legal protections of treating a patient without his or her informed consent. At a minimum, the following information should be documented in the chart:

  • Clinical description of the injury requiring treatment;
  • The specific threat to life;
  • The immediacy of the threat;
  • The magnitude of the threat;
  • The necessary treatment that will address the emergency and threat to the patient’s life.

In addition, any and all attempts at proxy informed consent that were unsuccessful also should be noted in the patient’s chart to maximize provider protections for treating the patient without informed consent.

Full vs. Partial Disclosure. It should be noted that in emergency circumstances, all material information should be provided to an adult, conscious patient, but not all information regarding the specific diagnosis and treatment must be disclosed. The provider must balance the "fullness" of disclosure with the potential harm that might occur due to the delay that concomitantly occurs during a full informed consent discussion. For example, as one court has noted, in an emergency situation that is a result of a poisonous snakebite, the emergency medical provider need not first discuss all the variable means and methods to treat the condition and each approach’s possible consequences, while venom is coursing through the patient’s body.4

Summary

There are several take-home messages regarding informed consent in the ED. ED providers always must obtain informed consent from conscious, cogent adult patients; most other emergency circumstances that could result in imminent and immediate harm to the patient if left untreated obviate the need for informed consent. These principles are summarized in the Table, below.

Table. Principles of Obtaining
Informed Consent in an Emergency
 

Of course, it should be emphasized that in all circumstances, if informed consent can be obtained from a guardian or family member and it is possible to do so without harm to the patient, providers should make every effort to obtain this consent even if the law would allow treatment without it.72 Practically speaking, such an effort will avoid any issues of hindsight bias associated with a potential adverse event or suboptimal outcome associated with care.

Endnotes

1. Schoendorff v. Society of N.Y. Hosp., 211 N.Y. 125, 105 N.E. 92 (1914).

2. Coulson KM, Glasser BL, Liang BA. Informed consent: Issues for providers. Hematol Oncol Clinics NA 2002;16:1365-1380.

3. Kritzer v. Citron, 224 P.2d 808 (Cal.App. 1950).

4. Crouch v. Most, 432 P.2d 250 (N.M. 1967).

5. Florida Statutes Annotated §401.445. St. Paul, MN: West Publishing; 1997.

6. Hawaii Revised Statutes Annotated §671-3. Charlottesville, VA: Michie Press; 1997.

7. Hudson v. Parvin, 582 So.2d 403 (Miss. 1991).

8. Liang BA. Medical malpractice. In: Liang BA. Health Law & Policy: A Survival Guide to Medicolegal Issues for Practitioners. Woburn, MA: Butterworth — Heinemann; 2000.

9. Cooper v. Roberts, 286 A.2d 647 (Pa.Super.Ct. 1971).

10. Liang BA. Informed consent. In: Liang BA. Health Law & Policy: A Survival Guide to Medicolegal Issues for Practitioners. Woburn, MA: Butterworth — Heinemann; 2000.

11. Hook v. Rothstein, 316 S.E.2d 690 (S.C. 1984).

12. McMahon v. Finlayson, 632 N.E.2d (Mass.Ct.App. 1994).

13. Glasser BL, Liang BA. Hearing without understanding: A proposal to modify federal translation guidelines to improve health care for citizens with limited English proficiency. J Health Law 2002;35:467-492.

14. Fox v. Smith, 594 So.2d 596 (Miss. 1992).

15. Daum v. Spinecare Medical Group, 61 Cal.Rptr.2d 260 (Ct. App. 1997).

16. Bloskas v. Murray, 646 P.2d 907 (Colo. 1982).

17. Franklin v. United States, 992 F.2d 1492 (10th Cir. 1993).

18. Craig v. Borcicky, 557 So.2d 1253 (Ala. 1990).

19. Smith v. Cotter, 810 P.2d 1204 (Nev. 1991).

20. Henderson v. Milobsky, 595 F.2d 654 (D.C.Cir. 1978).

21. Liang BA. What needs to be said? Informed consent in the context of spinal anesthesia. J Clin Anesth 1996;8:525-527.

22. Kozup v. Georgetown University, 663 F.Supp. 1048 (D.D.C. 1987).

23. Block v. McVay, 126 N.W.2d 808 (S.D. 1964).

24. Younts v. St. Francis Hosp. & School of Nursing, 205 Kan. 292, 469 P.2d 330 (1970).

25. Haberson v. Parke Davis, 746 F.2d 517 (Ninth Cir. 1984).

26. Crain v. Allison, 443 A.2d 558 (D.C. 1982).

27. McKinney v. Nash, 120 Cal.App.3d 428, 174 Cal.Rptr. 642 (1981).

28. Kritzer v. Citron, 224 P.2d 808 (Cal.Ct.App. 1950).

29. Vermont Statutes Annotated, tit. 12, §1909. St. Paul, MN: West Publishing; 1997.

30. Deerings California Codes Annotated. Business and Professions Code §2397. San Francisco: Bancroft-Whitney; 1986, pp. 128-30; Supp. 1996:57.

31. In re: Hudson, 126 P.2d 765 (Wash. 1942).

32. Bonner v. Moran, 126 F.2d 121 (D.C.Cir. 1941).

33. Rosato JL, The ultimate test of autonomy: Should minors have a right to make decisions regarding life-sustaining treatment? Rutgers Law Rev 1996;49:1-103.

34. Heniff MS, Moore GP. Medicolegal issues and risk management in pediatric emergency medicine. ED Legal Letter, 2001;12:137-148.

35. In re: Interest of E.G., 515 N.E.2d 286 (Ill.App. 1987), aff’d in part, rev’d in part not relevant to consent, 549 N.E.2d 322 (Ill. 1989).

36. Kun JM. Rejecting the adage children should be seen and not heard’ — The mature minor doctrine. Pace Law Rev 1996;16:423-462.

37. Jacovich v. Yocum, 237 N.W. 444 (Iowa 1931).

38. Rogers v. Sells, 178 Okla. 103 (1936).

39. Kirby v. Spivey, 307 S.E.2d 538 (Ga.Ct.App. 1983).

40. Bouvia v. Superior Court, 225 Cal.Rptr. 297 (Ct.App. 1986).

41. Lasley v. Georgetown University, 842 F.Supp. 593 (D.D.C. 1994).

42. In re: Martin, 538 N.W.2d 399 (Mich. 1995).

43. Grisso TH. Assessing Competence to Consent to Treatment: A Guide for Physicians and Other Health Professionals. New York City: Oxford University Press; 1998.

44. Dippel DL. Someone to watch over me: Medical decision making for hopelessly ill incompetent adults. Akron Law Rev 1991;24:639-680.

45. Hawaii v. Standard Oil Co., 405 U.S. 251 (1982).

46. In re: Darrell Dorone, 534 A.2d 452 (Pa. 1987).

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57. Douget v. Touri Infirmary, 537 So.2d 251 (La.App. 1988).

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