Informed consent or the ‘right to know’ is perhaps nowhere as important as in end-of-life or palliative care scenarios. Medical malpractice lawsuits stand in the face of both tort law and professional ethics. A Frankfort personal injury lawyer can assist in the litigation process.
What Is Informed Consent?
Informed consent means that a doctor must reveal to a patient any reasonable risks of injury or harm that may occur as the result of a procedure or treatment. Confidentiality of patient record as part of the ‘duty to a reasonable standard of care’ as outlined in liability rules on malpractice, serves as guidelines to physician determination of a patient’s reasoned competency to participate in treatment intervention decisions.
Deviation from standard obligation to patients in informed consent practices, is found in cases where plaintiffs are deemed to be mentally incapacitated. The inability of a mentally incompetent party to make informed consent decisions, constrains terms to liability of clinical institutions and practitioners. Incapacity of consenting parties denies patients the right to make informed decisions on their own behalf.
Best Practices to Informed Consent
The scope of ethical rules in respect to ‘omission’ of information in informed consent practices concerning patient parties is pertinent to medical malpractice cases in hospice and nursing home settings. Patients admitted to hospice organizations are normally diagnosed with chronic illness, and related conditions connected to genetic or effluent incurred transmission.
This scenario presents a risk management for nursing home and hospice organizations. In liability lawsuits filed on behalf of patients, application of the negligence calculus to determine if cost or risk of prevention in the form of detriment to the patient exceeds the current cost or risk, narrows duty and evidence in respect to obligation to liability. Practitioner immunities reflect this common law tort rule in the United States.
Incapacity of patient parties, however, does not impact the right to confidentiality according to law. Loopholes in administrative processes and referral record sharing once subject to non-disclosure agreements are preempted by protection of the patient’s privacy. Third party participation in patient record found in hospice recommendation, must remain closed to be consistent with U.S. law. Court interrogatories are the exception, allowing attorney access to patient record formerly sealed under non-disclosure rules.
The Patient Bill of Rights
The U.S. Patient Bill of Rights states that safe, considerate and respectful provision of care must be aligned with patient beliefs. Informed consent provides the opportunity for a healthcare organization and patient to work together toward a viable treatment plan. Confidentiality is also covered in the Bill, citing that all communications and records related to a patient be treated as confidential up to the extent permitted by law.
Knowledge of physician professional training and complete information about diagnosis, treatment, and prognosis by that practitioner should be provided in a legally authorized manner. Forewarning of any potential risks or benefits to treatment outlined in the Bill fulfills the negligence calculus rule to communication of potential detriment or harm. If exempt from forewarning, due to a patient’s incapacitation or cases of emergency, exception to liability is normally made.
Exceptions are also made where incapacitated parties are represented in medical decisions by designated third party interveners. In the U.S. this is seen in the court mandated conservatorship of patients. Attorneys ensure that ‘power of attorney’ is demonstrated. If it is proven that informed consent procedure has been breached, a client may have a case.Filing a Medical Malpractice Claim
Medical malpractice cases involving palliative care treatment often refer to the Doctrine of Apparent Agency (DoAA). If you or an incapacitated family member has been harmed in a hospice or nursing home setting, understanding the DoAA is the first step in understanding your rights to just compensation and protection under the law.
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