Explain why caregivers are considered patient adv

Explain why caregivers are considered patient advocates. When and how does one become a patient advocate? Discuss the legal implications of being a patient advocate. What resources can patient advocates access to help them perform their roles/responsibilities?

Patient Rights and Responsibilities

It’s Your Gavel…

A MOTHER’S RIGHT: A CHILD’S DEATH

Harrell, a Jehovah’s Witness, was 6 months pregnant when physicians discovered a life-threatening blood condition that could deteriorate and place both her life and the life of the fetus in jeopardy. Because of religious beliefs, Harrell objected to a blood transfusion. After an emergency hearing, the court ruled that a blood transfusion could be given to Harrell if it was necessary to save the life of the fetus and that after the child was born, a blood transfusion could be given to the child if necessary to save the child’s life. The Harrells appealed. The child was delivered by cesarean section and died 2 days later. No blood transfusion was given to Harrell or to the child. As a result, the hospital and the state claimed that the appeal of the trial court’s order is moot. Because of the hospital’s misunderstanding about its standing to bring such proceedings, the Florida District Court of Appeals addressed the issue as capable of repetition yet evading review.

The Florida Constitution guarantees that a competent person has the constitutional right to choose or refuse medical treatment. In cases where these rights are litigated, a party generally seeks to invoke the power of the state, through the exercise of the court’s judicial power, either to enforce the patient’s rights or to prevent the patient from exercising those rights. The state has a duty to ensure that a person’s wishes regarding medical treatment are respected.

Harrell argued that the hospital should not have intervened in her private decision to refuse a blood transfusion. She claimed that the state never had been a party in this action and had not asserted any interest and that the hospital had no authority to assume the state’s responsibilities.1

WHAT IS YOUR VERDICT?

Learning Objectives

The reader, upon completion of this chapter, will be able to:

• Discuss the importance of understanding patient rights.

• Discuss the importance of understanding patient responsibilities.

• Understand how rights and responsibilities go hand in hand.

This chapter provides a brief overview of both the rights and responsibilities of patients. Every person possesses certain rights guaranteed by the Constitution of the United States and its amendments, including the freedoms of speech, religion, and association, and the right not to be discriminated against on the grounds of race, creed, color, or national origin. The Supreme Court has interpreted the Constitution as also guaranteeing certain other rights, such as the right to privacy and self-determination, and the right to accept or reject medical treatment.

With rights come responsibilities. The patient, for example, has a right to receive emergency care, while at the same time also has a responsibility to let the caregiver know the limits of that care as noted in the opening case above where the patient objects to the administration of blood.

19.1 PATIENT RIGHTS

Patient rights may be classified as either legal—those emanating from law—or human statements of desirable ethical principles such as the right to be treated with dignity and respect. The rights of patients discussed here do not exist in a vacuum without limitations—they are tethered to moral obligations and responsibilities that have their roots in the law, ethics, moral principles, and religious values. To kill another human being, for example, is wrong and punishment will follow if the life of another is taken.

Patients have a right to receive a clear explanation of tests, diagnoses, prescribed medications, prognosis, and treatment options.2 Most federal, state, and local programs (e.g., Medicare, Medicaid) specifically require, as a condition for receiving funds under such programs, an affirmative statement on the part of the organization that it will not discriminate.

Admission

It is well established by both federal and state law, as well common law, that patients have a right to receive emergency care and inpatient admission if such is required for the health and safety of the patient. Healthcare providers receiving funds from programs such as Medicare and Medicaid are expected to have an affirmative statement that provides it will not discriminate against patients on the basis of age, race, creed, color, or national origin. Patients also have a right to have their care needs responded to within a reasonable time frame; delays in responding to a patient’s needs can put a patient’s life at risk, and put the organization at legal risk for injuries the patient suffers as a result of the delay.

Whether a person is entitled to admission to a particular governmental facility depends on the statute establishing that organization. Governmental hospitals, for example, are, by definition, creatures of some unit of government; their primary concern is service to the population within the jurisdiction of that unit. Military hospitals, for example, have been established to care for those persons who are active members of the military.

Although persons who are not within the statutory classes have no right of admission, hospitals and their employees owe a duty to extend reasonable care to those who present themselves for assistance and are in need of immediate attention. With respect to such persons, governmental hospitals are subject to the same rules that apply to private hospitals. For example, the patient in Stoick v. Caro Community Hospital
3 brought a medical malpractice action against a government physician in which she alleged that the physician determined that she was having a stroke and required hospitalization but that he refused to hospitalize her. The plaintiff’s daughter-in-law called the defendant, Caro Family Physicians, P.C., where the patient had a 1:30 PM appointment. She was told to take the patient to the hospital. On arriving at the hospital, there was no physician available to see the patient, and a nurse directed her to Dr. Loo’s clinic in the hospital. On examination, Loo found right-sided facial paralysis, weakness, dizziness, and an inability to talk. He told the patient that she was having a stroke and that immediate hospitalization was necessary. Loo refused to admit her because of a hospital policy that only the patient’s family physician or treating physician could admit her. The plaintiff went to see her physician, Dr. Quines, who instructed her to go to the hospital immediately. He did not accompany her to the hospital. At the hospital, she waited approximately 1 hour before another physician from the Caro Family Physicians arrived and admitted her. Loo claimed that he did not diagnose the patient as having a stroke and that there was no bad faith on his part.

The circuit court granted the physician’s motion for summary judgment on the grounds of governmental immunity. The court of appeals reversed, holding that the plaintiff did plead sufficient facts constituting bad faith on the part of Loo. His failure to admit or otherwise treat the patient is a ministerial act for which governmental immunity does not apply and may be found by a jury to be negligence.

Examination and Treatment

Patients have a right to expect their physician will conduct an appropriate history and physical examination based on the patient’s presenting complaints. The assessment is the process by which a physician investigates the patient’s state of health, looking for signs of trauma and disease. It sets the stage for accurately diagnosing the patient’s medical problems, which leads to an agreed-upon treatment plan. A cursory assessment can lead to a misdiagnosis and inappropriate treatment plan. As reported by Karen Asp in Shape Magazine, “Is Your Dr. Missing the Mark?: “It took almost my whole life to get the right diagnosis because no one person had asked me enough questions.”4

Participate in Care Decisions

Patients have the right to choose the medical care they wish to receive. They have a right to know their treatment options and to accept or refuse care. As medical technology becomes more advanced, care decisions become more complicated to make. Although patients have a right to make their own care and treatment decisions, they often face conflicting religious and moral values in their decision-making process. Often, it is difficult to make a choice when two roads may seem equally right.

Informed Consent

Patients have a right to receive all the information necessary to make an informed decision prior to consenting to a proposed procedure or treatment. This information should include the possible risks and benefits of the procedure or treatment. The right to receive information from the physician includes information about the illness, the suggested course of treatment, the prospects of recovery in terms that can be understood, the risks of treatment, the benefits of treatment, alternative care options, and proof of consent.

Refuse Treatment

Patients have a right to refuse treatment and be told what effect such a decision might have on their health. The responsibility of caregivers requires balancing risks and benefits. This balancing can lead to situations in which healthcare professionals view their obligations to a patient differently from the patient’s own assessment. Forcing a patient to undergo an unwanted procedure would result in a failure to respect the patient’s right of self-determination. For example, the patient in Matter of Dubreuil
5 at the time of her admission signed a standard consent form that included her agreement to have a blood transfusion if necessary. The following day, she was scheduled for a cesarean section, but she would not consent to a blood transfusion because of her religious beliefs. During the course of the delivery, after she had lost a significant amount of blood, it was determined that she needed a transfusion to save her life, but she would not give her consent. Her estranged husband was contacted, and upon his arrival at the hospital, he gave his consent for the transfusion. After the first transfusion, physicians determined that she would need more blood, so they petitioned the circuit court for an emergency hearing to determine whether they could give the transfusion despite the patient’s lack of consent. The trial court decided to allow the hospital to administer blood as they deemed necessary. The patient moved for a rehearing, and the circuit court denied a rehearing. The patient then sought review by the Florida Supreme Court, arguing that her federal and state constitutional rights of privacy, self-determination, and religious freedom had been denied. The Florida Supreme Court ruled that a competent person has a right to refuse medical treatment, including all decisions relevant to his or her health. A healthcare provider must comply with the patient’s wishes unless supported by a court order to do otherwise. Here, the state interest was the protection of the children as innocent third parties. However, in this case, there would have been no abandonment because under Florida law, when there are two living parents, they share equally in the responsibilities of parenting. Had the patient died, her husband would have assumed the care of the children.

Pain Management

Pain is an unpleasant sensation ranging from mild, localized discomfort to acute systemic pain with both physical and emotional components. Some describe the physical part of pain as throbbing, hurting, tenderness, a burning sensation, dull, stabbing, numbing, sharp, and shooting. By others, it has been indescribable, making day-to-day living unbearable. The feeling of pain results from specific nerve fibers carrying pain impulses to the brain. The sensation of acute physical hurt or discomfort caused by injury or illness often includes varying degrees of emotional suffering.

Pain is the body’s way of alerting the patient that something is not quite right. A pain rating scale is a visual tool often used to help a patient describe his or her pain level. It helps the caregiver know how effective treatment is and whether a change in a patient’s treatment plan is necessary. The pain assessment scale is a tool often used because of its ease of use in performing a task. Just as important as the severity of pain are its locations and type. A diagram of the body should be used so that the patient can more easily identify the various locations of his or her pain. The severity of pain can be described to the physician to assist in diagnosing and treating the patient.

Pain management is the process whereby caregivers work with the patient to develop a pain control plan. The process involves educating the patient as to the importance of pain management in the course of healing. With current treatments, pain can often be prevented, or at least controlled. A pain control treatment program should be developed in collaboration between the caregiver and the patient; include alternative and/or complementary strategies for pain management; include family and caregivers as appropriate in the decision-making process; and include an explanation of the medications, anesthesia, other treatments, risks, benefits, and alternatives (e.g., acupuncture). The plan should also ensure that the patient can request changes in treatment if pain persists, is able to refuse the recommended pain treatment(s), and receives pain medication in a timely manner.

Quality Care

Healthcare professionals are expected to monitor the quality of each patient’s care, beginning with the history and physical, through the development of the treatment plan, and, ultimately, to the delivery of care to the patient. The patient has a right to expect that the quality of care rendered will be based on best practices recognized in the healthcare industry.

Know One’s Rights

The continuing trend of consumer awareness, coupled with increased governmental regulations, makes it advisable for caregivers to understand the scope of patient rights. Patients have a right to make their own healthcare decisions. Healthcare organizations may no longer passively permit patients to exercise their rights, but must educate patients as to their rights. Each individual has a right to make decisions concerning his or her medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives.

Patients have a right at the time of admission to be provided in writing a copy of their rights and responsibilities. The patient’s rights and responsibilities are documented in a statement most often referred to as The Patient’s Bill of Rights. Access to a copy of a patient’s rights and responsibilities should be available to the general public when so requested. A limited random sample of three hospitals conducted by the author in two states revealed that staff members were often reluctant to provide and suspicious as to why a copy of the patient’s bill of rights was being requested. All three hospitals would not provide a copy onsite; one hospital, after a second visit, reluctantly provided a copy via email.

Patient’s Bill of Rights

A patient’s bill of rights often includes the following:

1. Receive an explanation of their rights.

2. Receive assistance in understanding their rights, including an interpreter.

3. Receive treatment without discrimination as to race, color, religion, sex, national origin, disability, sexual orientation, or source of payment.

4. Receive considerate and respectful care in a clean and safe environment, free of unnecessary restraints.

5. Receive emergency care, if needed.

6. Know the names, positions, and functions of any hospital staff involved in their care and refuse treatment, examination, or observation by them.

7. Receive complete information about their diagnosis, treatment, and prognosis.

8. Receive all the information they need to give informed consent for any proposed procedure or treatment, including the risks, benefits, and alternatives to care or treatment.

9. Designate an individual to give informed consent if they are too ill to do so.

10. Discontinue care or refuse treatment.

11. Receive an explanation as to what can be expected if care is refused.

12. Refuse to consent or decline to participate in research.

13. Expect privacy while in the hospital and confidentiality of all information and records regarding their care.

14. Participate in all decisions about their treatment and discharge from the hospital.

15. Review and obtain a copy of their medical records.

16. Receive an itemized bill and explanation of all charges.

17. Complain, without fear of reprisal, about the care and services they are receiving.

18. Know the hospital’s relationships with outside parties that may influence a patient’s treatment and care. These relationships may be with educational institutions, insurers, and other healthcare providers.

19. Know about hospital resources, such as patient representatives or ethics committees, that can assist in resolving problems and questions about their hospital stay and care.

20. Be informed of any unanticipated outcomes or mistakes that may affect the patient’s health status (e.g., administration of the wrong medication).

Know Caregivers

Patients have a right to appoint a surrogate decision maker should they become incapacitated or unable to make decisions. Because patients are often helpless and unable to speak for themselves, all caregivers, whether they are volunteers or paid staff, should consider themselves patient advocates.

Explanation of Rights

Patients have a right to receive an explanation of their rights and responsibilities. An organization’s description of patient rights and responsibilities should be viewed as a document with legal significance whether or not the state in question has adopted a similar code. The rights of patients must be respected at all times. Each patient is an individual with unique healthcare needs. Any restrictions on a patient’s visitors, mail, telephone, or other communications must be evaluated for their therapeutic effectiveness and fully explained to and agreed upon by the patient or patient representative.

Ask Questions

Patients have the right to ask questions regarding their care from entry to the hospital through the time of departure. Questions regarding care could include, for example, “I saw blood in my IV tubing. Is this okay? Is it infiltrating?” or “My wound dressing seems wet. Is this okay? Should the dressing be changed?” Patients should not hesitate to ask for verification that advance directives are available in the medical record, confirmation that contact information for the designated surrogate decision maker is available in the medical record in the event the patient becomes incapacitated and cannot make healthcare decisions, clarification of caregiver’s instructions, interpretation of caregiver’s illegible handwriting, instructions for medication usage (e.g., frequency, dosing, drug–drug or drug–food interactions, contraindications, side effects), clarification of physician’s orders (e.g., diet), explanation of treatment plans, a copy of the organization’s hand-washing policy, a description of the hospital’s procedures to prevent wrong-site surgery, consultations and second opinions, and accurate and complete discharge instructions. This listing is but a sampling of the many questions that patients have a right to ask during the course of their care in any healthcare setting.

A Patient’s Right to Ask Questions

Hillary was the lead consultant assigned to speak at a state-sponsored conference. The purpose of the conference was to review new and revised standards designed to encourage patients to ask questions about their care. They were scheduled to be effective on January 1. Hillary scheduled four junior consultants to speak with her on a variety of topics. Rebecca, one of the more junior of the consultants, addressed the right of patients to ask questions. She spoke about the newly designed program that would require healthcare providers to encourage patients to speak up and ask questions about any concerns they may have regarding their care. Following her presentation, Rebecca asked for questions from the audience. One participant commented, “I really don’t understand the need for this regulation. Patients don’t seem to have a problem complaining.” Rebecca attempted to continue answering the questions of what appeared to be a generally disgruntled person. Hillary listened intently but appeared to be at a loss for words.

Jerome attempted to rescue Rebecca from the constant interruptions of that day’s apparently self-appointed antagonist in the audience. Jerome raised his hand, and after being recognized by Rebecca, he responded, “Many patients are not afraid to ask questions and complain when they believe things are not going right. These often are ambulatory patients who can leave a particular provider if they become dissatisfied. Other, more seriously ill in-patients may fear some sort of retaliation if they complain. This is often the case in long-term care facilities.” A caregiver in the audience strongly disagreed. Jerome said, “I realize this is not the case with all patients. This fear can often arise, however, with an elderly person or extremely ill individual who is weak and feels vulnerable to upsetting someone, believing that his or her care could be compromised if he or she asks too many questions or complains. Seniors have sometimes been abused at home or other care settings and are often not willing to risk further confrontation.”

Figuring a picture is worth a thousand words, Jerome had asked for an overhead projector and proceeded to show some newspaper clippings illustrating why some patients have developed a fear to ask questions. After the session was over, the audience member who had raised the issue approached Jerome and said, “All caregivers are not like the ones you displayed.” Jerome said, “I agree. I tried to illustrate for you why some patients are fearful.” Jerome looked for Rebecca but learned that she had left the conference following her presentation.

Discussion

1. Do you agree with Jerome’s attempt to help Rebecca by responding to the concern of the conference attendee?

2. Describe what approach you would have taken in responding to the disgruntled conference attendee.

Have Special Needs Addressed

Hospital policy should address how patients with special needs can be addressed. Patients with physical and psychological disabilities should be addressed at the time of their admission to the hospital. Whenever possible, arrangements should be available for a language interpreter, sign language interpreter for the hearing impaired, and pertinent documents written in brail for the blind. These are helpful tools in addressing patients with special needs. Information should be provided at the time of the patient’s admission (e.g., employee handbook written in commonly used languages of the community the hospital serves, bulletin boards). A listing of employees and community members who would be willing to help patients with special needs for improving the communication process should be maintained by the hospital and other health care settings as appropriate. Joint Commission standards also address the patients’ rights to effective communications in their accreditation manual (2014 Hospital Accreditation Standards RI.01.01.01–.5).

Without alternative ways to address patients with special needs, it would be difficult to understand what the patient’s wishes are and what he or she is consenting to in the hospital or other care setting.

Execute Advance Directives

Patients must be informed of their right to execute advance directives. The advance directives must be honored within the limits of the law and the organization’s mission, philosophy, and capabilities.

Compassionate Care

Patients have a right to receive considerate and compassionate care from caregivers. There appears to be less time for compassion in the practice of medicine then at the turn of the 20th century. Providers of care seem to have taken the assembly line approach to patient care with little thought as to the need to help alleviate their patients’ fears. Dr. Robert E. Rakel, Department of Family Medicine at Baylor College of Medicine in Houston, wrote in the Journal of the American Board of Family Practice, “It has been said that more mistakes in medicine are made by those who do not care than by those who do not know.”6

The caring function of family medicine emphasizes our personalized approach to health care and our commitment to understanding the patient as a person, respecting the person as an individual, and showing compassion for his or her discomfort. Compassion, from the word patior, literally means “to suffer with,” to share in another’s distress and to be moved to give relief. Compassion reflects the physician’s willingness to share the patient’s anguish and to attempt to understand what the sickness means to that person.7

It seems with the progress of medicine there has, at the same time, been a decline in compassion for the patient. Patients fill out numerous forms prior to their visit to the physician’s office and yet the caregiver often fails to read the information the patient has provided.

Confidentiality

Patients have a right to expect that information regarding their care and treatment will be kept confidential. Information received by a caregiver in a confidential capacity relating to a patient’s health should not be disclosed without the patient’s consent. Confidentiality requires that the caregiver safeguard a patient’s confidences within the constraints of law. An exception to the rule of confidentiality of patient communications is the implied right to make available to others involved in the patient’s care the information necessary to that care. Caregivers must be cautious not to discuss any aspect of a patient’s care with others not involved in the case. Written permission must be obtained before a patient’s medical record can be made available to anyone not associated with the patient’s care.

Hospital to Punish Snooping on Spears

UCLA Medical Center is taking steps to fire at least 13 employees and has suspended at least six others for snooping in the confidential medical records of pop star Britney Spears during her recent hospitalization in its psychiatric unit, a person familiar with the matter said Friday.

In addition, six physicians face discipline for peeking at her computerized records, the person said.

—Charles Ornstein, Los Angeles Times, March 15, 2008

The phlebotomist in Bagent v. Blessing Care Corp.8 revealed the results of a patient’s pregnancy test to the patient’s sister at a public tavern. Although there was an attempt by the hospital to have the case dismissed for the phlebotomist’s breach of confidentiality, invasion of privacy, and the negligent infliction of emotional distress, the appeals court determined that there were triable issues of fact precluding dismissal of the case. It was asserted that the phlebotomist had been trained to maintain the confidentiality of patient information and that she knew that she had violated the patient’s rights.

Privacy and HIPAA

Patients have a right to receive a “Notice of Privacy Standards,” a requirement under the Health Insurance Portability and Accountability Act (HIPAA) (45 CFR 164.520).

The HIPAA Privacy Rule gives individuals a fundamental new right to be informed of the privacy practices of their health plans and of most of their health care providers, as well as to be informed of their privacy rights with respect to their personal health information. Health plans and covered health care providers are required to develop and distribute a notice that provides a clear explanation of these rights and practices. The notice is intended to focus individuals on privacy issues and concerns, and to prompt them to have discussions with their health plans and health care providers and exercise their rights.9

The issues of confidentiality and privacy have both ethical and legal implications. Caregivers must safeguard each patient’s right to privacy and the right to have information pertaining to his or her care kept confidential.

HIPAA permits disclosures of certain patient information. However, such disclosures are only permitted when reasonable steps have been taken to minimize the release of confidential information. For example, sign-in sheets may not display medical information that is not necessary for sign-in purposes.

Disclosure may be made under compelling circumstances (e.g., suspected child abuse) to a person with a legitimate interest in the patient’s health. The issues of confidentiality and privacy are both ethical and legal. Caregivers must safeguard each patient’s right to privacy and the right to have information pertaining to his or her care to be kept confidential.

Disclosures Permitted Without Patient Authorization

A healthcare provider may disclose patient information (e.g., diagnoses, anesthesia history, surgical and other invasive procedures, drug allergies, medication usage, laboratory test results, imaging studies) in the following situations:

• Disclosure of patient information to other providers who may be caring for the patient in order to provide safe healthcare treatment

• Disclosure of patient information to third-party payers so that providers can obtain payment for services rendered

• Disclosure of patient information for healthcare operations

• Disclosure of patient information as may be required by a law enforcement agency

• Disclosure of patient information as may be required to avert a serious threat to public health or safety

• Disclosure of patient information as required by military command authorities for their medical records

• Disclosure of patient information to workers’ compensation or similar programs for processing of claims

• Disclosure of patient information in response to a subpoena for a legal proceeding

• Disclosure of patient information to a coroner or medical examiner for purposes of identification

Limitations on Disclosures

Some of the individual rights a patient has regarding disclosure of access to his or her medical information are as follows:

• Right to request restrictions or limitations regarding information used or disclosed about treatment or care

• Right to an accounting of nonstandard disclosures: The patient has a right to request a list of the disclosures made of information released regarding his or her care

• Right to amend: If a patient believes that medical information regarding his or her care is incorrect or incomplete, he or she has a right to request that the information be corrected

• Right to inspect and copy medical information that may be used to make care decisions

• Right to file a complaint with the provider, or the Secretary of the Department of Health and Human Services (DHHS) in Washington, DC, if the patient believes his or her privacy rights have been violated

• Right to a paper copy of a notice pertaining to the patient

• Right to know of restrictions on rights

The limitations of space and financial restraints make it difficult to continuously preserve a patient’s right to privacy in many hospital settings (e.g., emergency departments). Nevertheless, healthcare organizations have a responsibility to provide for a reasonable amount of privacy for patients.

Patient Advocacy

Many states have established, by legislation, ombudsperson programs. Ombudspersons are responsible for the investigation of reports of resident abuse in nursing facilities. The primary impetus for the program came from the Nixon Administration, and gradually the program spread throughout the country. It was not until 1978 that the Older Americans Act Amendments (PUB. L. No. 95-478) mandated that every state have an ombudsperson program and that a certain amount of the Older Americans Act funds from Title III-B (the Social Services section) had to be allocated to the ombudsperson program.

In addition, caregivers providing care in their particular areas of responsibility and expertise can accomplish patient advocacy by working on behalf of the patients they serve.

Ethics Consultation

Patient’s rights in many hospitals allow for patients and/or their families to access an ethics committee for consultation when faced with challenging treatment decisions that involve ethical dilemmas. Dilemmas often arise when two or more choices often have some degree of a negative outcome. Conflict can arise when there is a difference of opinion between families and care providers, or when the family is unsure about what course of treatment is best for the patient. Ethics committee consultation can provide an objective perspective, and their recommendations should not be considered as binding. Ethics consultations are helpful when, for example, making end-of-life decisions.

Chaplaincy Services

Today I will take the time to be happy and will leave my footprints and my presence in the hearts of others.

—Author Unknown

Patients have a right to chaplaincy services and have their spiritual needs addressed. The purpose of a pastoral care program is to affirm the valuable role of spiritual care as an integral part of a patient’s healing process. Accordingly, a chaplaincy program will make available to patients and their families spiritual support while they are in the hospital, in accordance with their wishes. The clergy and pastoral care volunteers are important members of the healing team.

A multi-faith chapel is available in many hospitals, as are televised services. Some hospitals provide spiritual devotions and reflections that are broadcast daily. Music and meditation are often provided as an adjunct for pain management and stress reduction at the bedside.

Chaplains are often available as a first call option for ethics consultations. The hospital chaplain acts as a liaison between the patient and area clergy. Consults with the patient care team contribute to the holistic care of patients, family and staff through assessment, pastoral conversation, and other interventions. Caregivers often refer patients to a chaplain if they are experiencing life-changing events; lack effective social, psychological, or spiritual support; have complicated personal relationships; express spiritual or religious concerns; are in a remorseful state of mind; express hopelessness, worthlessness, anger, or depression; or receive news of life-threatening conditions. Chaplains are also available to meet with families at times of death of the patient.

Organizational policies and procedures should address the psychosocial, spiritual, and cultural variables that influence one’s understanding and perception of illness. Hospital pastoral care departments should provide a patient information brochure at the time of admission that describes the services offered and how to access them. For example, an introductory statement to such a brochure could be worded to include:

• When a loved one is hospitalized—or when you require hospitalization yourself—it is perfectly normal to feel anxious, worried, and sometimes overwhelmed.

• We know how you feel. At times like this, it’s good to have a helping hand. The hospital’s pastoral care department is here to help you cope with the emotional struggle associated with hospitalization.

• No matter what your religious affiliation, a representative of the pastoral care department is always available, ready to offer spiritual and emotional support.

• Someone will lend an ear and offer comforting words. He or she will help you draw on your spiritual strength in these times of need.

Services offered by a chaplaincy program should offer pastoral support to patients and their families at time of crisis, which may include prayer, scripture reading, and counseling; provide for enhanced communications among patients, their families, and hospital personnel; be available to clinical staff for counseling and support during or after emotional emergency situations; and provide appropriate referrals to the social service department, the local clergy, and community agencies as needed. Documentation should be included in the patient’s medical record to indicate that the patient’s spiritual needs have been addressed.

Discharge

Patients have a right to be discharged and not detained in a healthcare setting. An unauthorized detention of this nature could subject the offending organization to charges of false imprisonment. Although patients have a right not to be held against their will, there are circumstances where reasonable detainment can be justified (e.g., a minor’s release only to a parent or authorized guardian). When discharging a patient, a physician should issue and sign all discharge orders. If there is no need for immediate care, the patient should be advised to seek follow-up care with his or her family physician.

Release from Hospital Contraindicated

The plaintiff in Somoza v. St. Vincent’s Hospital
10 was admitted to the hospital during the 29th week of her pregnancy. She was admitted under the care of her private attending physician, defendant Dr. Svesko. She presented herself to the hospital with complaints of severe abdominal pain. Upon the plaintiff’s admission to the hospital, Dr. Gutwein (a resident physician at the hospital) examined her. According to the notations she made on the plaintiff’s chart, Gutwein independently formed the impression that the plaintiff might be suffering from either left pyelonephritis, premature labor, or polyhydramnios. Gutwein recorded a written plan and orders requiring that the plaintiff be hooked up to a fetal monitor. The plaintiff also was to undergo a number of diagnostic tests, including a renal pelvic sonogram. The results of the sonogram were abnormal, and the radiologist recommended a follow-up sonogram. However, the attending physician did not order a follow-up. Despite the abnormal sonogram and various findings on the physical examinations, Svesko decided to release the plaintiff from the hospital because her pain had subsided. He orally conveyed this order to Gutwein. According to Gutwein, she did not formulate an opinion as to the correctness of the decision to discharge because she was of the opinion that it was not her place to make such a decision. Instead, pursuant to Svesko’s instruction, on her early morning rounds, Gutwein simply signed an order discharging the plaintiff from the hospital. Four days later, the plaintiff returned to the hospital suffering severe pain and soon thereafter delivered twin girls. The twins were diagnosed as suffering from cerebral palsy resulting from their premature birth. The plaintiff brought a medical malpractice action against the hospital and Svesko arising out of the premature birth of the twins. The defendants filed a motion for summary judgment, and it was denied. The defendants appealed.

The New York State Supreme Court, Appellate Division, held that there were material issues of fact as to whether the mother’s symptoms exhibited during her physical assessment contraindicated her release from the hospital and that ordinary prudence required further inquiry by the resident physician, Gutwein.

The plaintiffs presented an affidavit by expert witness Dr. Sherman, which stated “the failure of the hospital staff to discharge without another physical examination, in my opinion, with a reasonable degree of medical certainty, is a departure from good and accepted medical practice. The resident clearly had an obligation to examine even a private patient in the face of a changing cervix and not just to discharge her pursuant to some attending physician’s order.”11 A hospital whose staff carry out a physician’s order may be held responsible where the hospital staff knows, or should know, that the orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders. In this case, the plaintiff’s release from the hospital was so clearly contraindicated by normal practice that ordinary prudence required further inquiry by Gutwein into the correctness of the discharge order.

Failure to Override Physician’s Discharge Order

Greer, in Greer v. Bryant,12 while at the Philadelphia College of Osteopathic Medicine (PCOM) and under the care of her physician, Dr. Bryant, was diagnosed with preeclampsia, a condition characterized by high blood pressure in the mother that poses a risk to the unborn child. On September 20, the patient suffered symptoms of fetal distress and was examined by the hospital’s interns and residents. Tests ordered at the time of her visit revealed that the fetus was suffering from “decelerations,” a periodic lowering of the heartbeat. Following her examination, Greer was instructed to return to the hospital on September 23. During that visit, it was noted that the fetus was experiencing “poor beat-to-beat variability.” Greer was once again sent home with instructions to return to the hospital on September 27. However, on September 26, Greer, experiencing severe pains, called the hospital emergency department. She was told to wait until her scheduled appointment the following day. Her appointment was subsequently canceled because of weather. Upon the insistence of her sister, Greer went to the hospital on September 27, where she delivered her child. The infant, suffering from “severe meconium aspiration” (inhalation by the fetus of its own fecal matter while in utero), died several days later.

The plaintiff alleged that the hospital, through its negligence, contributed to her child’s death. Greer sued Bryant and PCOM separately. She alleged that based on the prenatal test results during her September 23 visit to PCOM, she should have been delivered on that date by Bryant. The plaintiff argued that even if the test results had been communicated to Bryant and he decided to send her home, the residents should have recognized the serious condition of the fetus and, if necessary, sought approval from their superiors to keep her at the hospital.

Bryant made an offer to settle, and the plaintiff accepted. The Court of Common Pleas, upon jury verdict, entered judgment for the mother, finding PCOM 41% liable to the plaintiff. PCOM appealed. The plaintiff’s expert witness, Dr. Gabrielson, opined in her medical report that Greer should have been admitted and the child delivered despite the private physician’s instructions to send her home.

The Pennsylvania Superior Court determined that the jury could find that the hospital’s staff was negligent by not reporting the fetal distress of the unborn child to Bryant and that the plaintiff’s expert witness did not exceed her scope of opinion in her medical report. Although a resident and intern claimed that they had called Bryant, neither could testify as to the content of their conversation with him. Bryant testified that he did not recall receiving any telephone calls. He stated that if he had been aware of the decelerated heart rate, he would have ordered delivery of the child. “Since many of the critical events occurred on September 23, the jury could have determined that PCOM’s employees’ crucial nonfeasance occurred on that date … we must assume that the jury drew this inference” (Id. at 1002).

Transfer

Patients have a right to be transferred to an appropriate facility when the admitting facility is unable to meet a patient’s particular needs. This will at times necessitate the transfer of the patient to another healthcare organization that has the special services the patient requires. For this reason, it is important for each organization to execute transfer agreements with other healthcare organizations.

Healthcare organizations should have a written transfer agreement in effect with other organizations to help ensure the smooth transfer of patients from one facility to another when such is determined appropriate by the attending physician(s). Generally speaking, a transfer agreement is a written document that sets forth the terms and conditions under which a patient may be transferred to a facility that more appropriately provides the kind of care required by the patient. It also establishes procedures to admit patients of one facility to another when their condition warrants a transfer. Transfer agreements should be written in compliance with and reflect the provisions of the many federal and state laws, regulations, and standards affecting healthcare organizations. The parties to a transfer agreement should be particularly aware of applicable federal and state regulations.

Patients also have a right to choose a receiving facility, whenever possible. The Medicaid patient in Macleod v. Miller
13 was entitled to an injunction preventing his involuntary transfer from the nursing home. The patient had not been accorded a pretransfer hearing as was required by applicable regulations. In addition, it was determined that the trauma of transfer might result in irreparable harm to the patient. The appeals court remanded the case to the trial court with directions to enter an order prohibiting the defendants from transferring the plaintiff pending exhaustion of his administrative remedies.

In another case, a 97-year-old resident petitioned for review of a decision by the Department of Consumer and Regulatory Affairs to involuntarily discharge her from a community residence facility.14 The resident had lived in the facility for 8 years. The basis for the agency’s decision was that the resident’s discharge was essential to be in accordance with her prescribed level of care, pursuant to D.C. Code Annotated Section 32-1421(a). The facility presented, as evidence, three medical certification forms completed by Dr. Choisser, the treating physician. Two forms indicated in an ambiguous check-off system that the resident required an intermediate level of care. This was contradicted by a letter written by Choisser that stated, “I see no reason why she should not continue to reside in Chevy Chase House with complete safety…. It is my opinion that a change in her residence, at this stage in her life, would prove harmful to her emotionally, and I strongly suggest that she be left as she is.”15 The court held that the need for the discharge was not proven by clear and convincing evidence.

Access Medical Records

The courts have taken the view that patients have a legally enforceable interest in the information contained in their medical records and, therefore, have a right to access their records. Some states have enacted legislation permitting patients access to their records. Patients may generally have access to review and/or obtain copies of their records, X-rays, and laboratory and diagnostic tests. Access to information includes that maintained or possessed by a healthcare organization and/or a healthcare practitioner who has treated or is treating a patient. Organizations and physicians can withhold records if it is determined that the information could reasonably be expected to cause substantial and identifiable harm to the patient (e.g., patients in psychiatric hospitals, institutions for the mentally disabled, or alcohol and drug treatment programs).

Know Hospital’s Adverse Events

The Florida Supreme Court, in the cases Florida Hospital Waterman, Inc., etc. v. Teresa M. Buster, et al. and Notami Hospital of Florida, Inc., etc. v. Evelyn Bowen, et al., ruled that hospitals under Amendment 7 (approved by the voters on November 2, 2004, and codified as article X, section 25 of the Florida Constitution) must reveal their records about past acts of malpractice that have been performed at the hospital. In Florida, patients now have a right to know, ask about, and/or receive records about adverse medical incidents that have happened at the hospital. Amendment 7 to the Florida Constitution reads in part:

Section 25. Patients’ rights to know about adverse medical incidents.

(a) … patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.

(b) In providing such access the identity of patients involved shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.

Know Third-Party Relationships

Patients have a right to know the hospital’s relationships with outside parties that may influence their care and treatment. These relationships may be with educational institutions, insurers, and other healthcare caregivers.

Patient Education

Patients have a right to be provided education as it relates to their care and treatment. Patient education should begin with a caregiver’s first contact with the patient and should include a family member as necessary or if requested by the patient. Education should be conducted in all settings (e.g., inpatient, ambulatory, emergency department, home care) with those caregivers involved in the patient’s care on a collaborative basis. Patient education involves the establishment of trust, which emanates from patient recognition that the caregivers are knowledgeable and competent. Greetings, gestures, manner of taking information, and attitude are important ingredients in establishing a good relationship with the patient. Evidence of patient education should be placed in the patient’s medical record and should include an assessment of the patient’s readiness/willingness, ability, and need to learn about his or her care and treatment. Patient education should include the provision of information on medication safety, nutrition, medical equipment use, access to community resources, how to obtain further care if necessary, and responsibilities of the patient and family. The caregiver must ascertain if the patient understands the care instructions provided.

Transparency and Hospital Charges

Patients have a right to transparency when requesting information about hospital emergency room, outpatient, and inpatient treatment charges. The North Carolina legislature in August 2013 signed into law the Health Care Cost Reduction and Transparency Act (House Bill 834) requiring hospitals to submit pricing information on services to allow patients to compare treatment costs. Hospitals and ambulatory surgical facilities would be required to annually provide financial information for their 50 most common episodes of care to the North Carolina Health Information Exchange (Exchange), which allows free public access to its most current information. The Act is intended to allow patients to compare treatment costs among different providers.

Transparency Not So Transparent

I traveled to Florida for a continuing education program on patient care in my specialty. I unfortunately forgot my asthma inhaler. When I got off the plane after landing and not knowing where to go, as I was new to the area and it was late evening, I decided to go to a local hospital emergency department for a prescription. I was in no distress but was concerned that I had forgotten my inhaler. I unfortunately made the mistake of believing that an emergency room was an appropriate place to go for help and advice when traveling. I sat in a hallway, had my temperature and blood pressure taken, and inhaled some albuterol. My visit from beginning to end was about 20 minutes.

Upon returning home, I received an emergency room bill in excess of $3,000, so now I was distressed. Although I have an insurance policy, there is a $2,000 deductible that I was responsible to pay. I decided to request more detail on my bill. After a less then pleasant experience with the billing department I decided also to request a copy of my medical record. For a hospital that claimed transparency on its website, it took me six weeks and several annoying phone conversations with hospital staff to obtain the billing information and a copy of what turned out to be an 18-page barely readable computerized medical record that listed yes and no answers to questions I was never specifically asked. I couldn’t believe it and said to my husband, “Wow, the bill says $27.00 for the medication and I have to pay $2,973 to inhale it.”

In summary, I discovered there was no transparency the hospital publicized on its website. Transparency is an overused platitude that has little meaning. For me, I totally understand the U.S. citizen’s frustration with the healthcare system.

—Anonymous

19.2 PATIENT RESPONSIBILITIES

Patients have responsibilities as well as rights. The following description of patient responsibilities provides the reader with a sense of the ever-changing emphasis on patients’ responsibilities from both an historical and contemporary perspective.

Historical Perspective

The following is an excerpt from Cornwall General Hospital’s “Rules for Patients,” which were posted in that hospital in 1897:16

1. Patients on admission to the Hospital must have a bath, unless orders to the contrary are given by the Attending Medical Attendant.

• • • •

6. Patients must be quiet and exemplary in their behaviour and conform strictly to the rules and regulations of the Hospital, and carry out all orders and prescriptions of the various officers of the establishment.

• • • •

8. No male patient shall, under any pretense whatever, enter the apartments or wards for the females, nor shall a female patient enter the apartments or wards for males, without express orders from the Medical Attendant or Lady Superintendent.

• • • •

10. Every patient shall retire to bed at 9 P.M. from First May to First November, and at 8 P.M. from November to May; and those who are able shall rise at 6 A.M. in the Summer and 7 A.M. in the Winter.

11. Such patients as are able, in the opinion of the physicians and surgeons, shall assist in nursing others, or in such services as the Lady Superintendent may require.

• • • •

13. Patients must not take away bottles, labels or appliances when leaving the Hospital.

14. No patients shall enter into the basement story, operating theater, or any of the officers’ or attendants’ rooms, except by permission of an officer of the Hospital.

• • • •

17. Any patient bringing spirituous liquors into the Hospital or the grounds, or found intoxicated, will be discharged.

18. Whenever patients misbehave or violate any of the standing rules of the Hospital, the Attending Physician may remove or discharge them, as provided by clauses 91 and 93 of Rules for Medical Staff.

Contemporary Perspective

Today, patient responsibilities are stated somewhat differently than those described previously. A 1997 report to the President by the Advisory Commission on Consumer Protection and Quality in the Health Care Industry states, “In a health care system that protects consumers’ rights, it is reasonable to expect and encourage consumers to assume reasonable responsibilities. Greater individual involvement by consumers in their care increases the likelihood of achieving the best outcomes and helps support a quality improvement, cost-conscious environment.”17 The following paragraphs describe a variety of patient responsibilities.

Practice a Healthy Lifestyle

Living a healthy lifestyle involves both a right and a responsibility. Each person must take responsibility for living well through exercise, diet, stress control, and maintaining positive social relationships, which will help prepare people for whatever health obstacles the future may hold. Recognizing what is right and what is wrong for one’s health is not enough—it must be practiced.

Maintain Current Medical Records

Patients should maintain a record of physical ailments (e.g., cardiovascular disease) and treatments (e.g., surgical procedures) and a current listing of medications, including dosages and frequency. Drug allergies should be included on the list. Medication records should be reviewed periodically to be sure the listing is current. A copy should be provided to treating physicians and treating facility.

Keep Appointments

Patients should be sure to keep their appointments. When necessary to cancel an appointment, be sure to notify the caregiver of the cancellation. Failure to notify the caregiver results in longer delays for other patients who may already be finding it difficult to schedule appointments.

Provide Full Disclosure of Medical History

Patients must provide all information relevant to one’s medical condition, medical complaints, symptoms, location and severity of pain, previous pain control concerns, past illnesses, treatments, surgical or other invasive procedures, hospitalizations, medications, and allergies. Information provided must be accurate, timely, and complete. (The court of appeal in Fall v. White
18 affirmed the superior court’s ruling that the patient had a duty to provide the physician with accurate and complete information and to follow the physician’s instructions for further care or tests.)

Accurately Describe Symptoms

Patients must accurately describe the location and severity of their symptoms, as well as any previous treatments, allergies, and surgery. Failure to do so can lead to the wrong diagnosis and treatment plan.

RESPONSIBILITY TO DISCLOSE INFORMATION

Citation:
Oxford v. Upson County Hosp., Inc., 438 S.E.2d 171 (Ga. Ct. App. 1993)

Facts

Oxford brought a lawsuit against the Upson County Hospital and nurses, claiming that their medical malpractice caused her injury from a fall in the hospital’s bathroom. Oxford had been admitted to the hospital after having been diagnosed with gastroenteritis and dehydration. Nothing on her chart indicated that she had experienced dizziness. Testimony at the trial indicated that Oxford told her nurse that she had to go to the bathroom. Oxford did not inform the nurse that she felt dizzy. After the nurse escorted her to the bathroom, Oxford fainted while sitting on the toilet. As she fainted, she hit her head on the bathroom wall.

Two nurse experts testified that it is a patient’s responsibility to communicate to the staff any symptoms the patient is experiencing. Oxford had told her physician prior to her hospitalization about feeling dizzy, but he had not related this information to the hospital’s staff.

After a jury verdict for the hospital, Oxford appealed, arguing that the trial court’s jury charges on causation, failure to exercise ordinary care, and comparative negligence were wrong.

Issue

Was there sufficient evidence to warrant the judge’s charges to the jury?

Holding

The Georgia Court of Appeals affirmed the jury verdict and found that the judge’s charges on the issues had been sufficient. The court followed its determination in Carreker v. Harper, 196 Ga. App. 658, 659, 396 S.E.2d 587 (1990), that when a patient fails to disclose all information related to her condition and fails to exercise ordinary care for her safety by seeking medical attention for her worsening condition, a charge of comparative negligence is applicable. In this case, the court did not require that Oxford diagnose herself, but she should have told the staff about her symptoms so that they could have treated her using their professional judgment.

Discussion

1. Do you agree with the appellate court’s decision?

2. What precautions should the admitting physician and nurses take to help prevent similar injuries from occurring in the future? Explain.

Communicate Care Preferences

Patients are responsible for communicating to staff their care preferences, including who has been selected as a decision maker in the event the patient becomes incapacitated and unable to make decisions for himself/herself.

Stay Informed

A patient has the responsibility to understand caregiver instructions and ask questions when information is unclear. Consider the following case where a patient had been sedated during the performance of a colonoscopy at an endoscopy center. He decided to drive himself home against medical advice. Claims against the clinic and a nurse were dismissed with respect to fatal injuries that the patient received during a one-car collision. The trial court correctly ruled that the nurse had no duty to prevent the patient from leaving its premises once she repeatedly warned the patient not to drive. The nurse was justified in relying upon the patient’s false representations that he had a friend available to drive him home. She was not required to keep the patient in a gown in the recovery room once she learned the truth, and she was not required to use other options to prevent him from driving, such as putting him in a taxi cab, putting him in a hotel, calling the police, admitting him to the hospital, personally driving him home, taking his keys away from him, or physically restraining him. The center and the nurse owed no legal duty to the patient to do more than warn him that he should not drive. The center is not an insurer of the patients’ safety. The patient acted recklessly in ignoring the advice he was given and suffered the consequences. The circuit court correctly found no duty to ensure that no patient drives after the procedure.19

Report Unexpected Changes in Health Status

If a patient experiences changes in health status, it is his or her responsibility to report these changes to healthcare providers.

Adhere to the Agreed-Upon Treatment Plan

Patients must state whether they clearly understand their plan of care. If they decide to refuse treatment, patients must accept responsibility for the potential consequences. Patients should work collaboratively with their healthcare providers in developing and carrying out agreed-upon treatment plans. Following the recommended treatment plan is the patient’s responsibility, as are the consequences of failing to adhere to the caregiver’s instructions.

Avoid Self-Administration of Medications

Patients are not to self-administer medications not prescribed by the physician, including those they may have brought to the hospital.

Actively Participate in Care

When in doubt, patients should ask questions and/or seek a second opinion. Patients should, for example, participate in marking the site of a surgical or other invasive procedure to help prevent treatment errors.

Comply with Hospital Policy

Patients are required to adhere to the rules and regulations in patient handbooks and posted instructive materials. The number of visitors, for example, should be limited as requested by hospital policy and to protect the privacy of other patients.

Respect

Patients should show the same respect for other patients and health workers that they expect for themselves. This includes being considerate of the rights of others (e.g., noise control, no-smoking rules, respect for the rights and property of others).

Understand That Medical Science Has Limits

While there have been great strides in medicine, patients must recognize that medicine has its boundaries. In addition, medicine is performed by humans, who are fallible, which means that there are limits to their capabilities.

Ask Questions

The necessity and responsibility to ask questions cannot be overstated. A knowledgeable patient is a good patient. If a caregiver’s instructions are unclear or confusing, patients should seek clarification and a written copy of the proposed treatment plan. Patients have a responsibility to ask questions and understand explanations. Such questions include: “What is this medication for?”, “What diet am I on?”, or “Since you are going to change my dressing, did you wash your hands?”

20 TIPS TO HELP PREVENT MEDICAL ERRORS
20

What You Can Do to Stay Safe

The best way you can help to prevent errors is to be an active member of your healthcare team. That means taking part in every decision about your health care. Research shows that patients who are more involved with their care tend to get better results.

Medicines

1. Make sure that all of your doctors know about every medicine you are taking.

2. Bring all of your medicines and supplements to your doctor visits.

3. Make sure your doctor knows about any allergies and adverse reactions you have had to medicines.

4. When your doctor writes a prescription for you, make sure you can read it.

5. Ask for information about your medicines in terms you can understand—both when your medicines are prescribed and when you get them.

6. When you pick up your medicine from the pharmacy, ask: Is this the medicine that my doctor prescribed?

7. If you have any questions about the directions on your medicine labels, ask.

8. Ask your pharmacist for the best device to measure your liquid medicine.

9. Ask for written information about the side effects your medicine could cause.

Hospital Stays

10. If you are in a hospital, consider asking all healthcare workers who will touch you whether they have washed their hands.

11. When you are being discharged from the hospital, ask your doctor to explain the treatment plan you will follow at home.

Surgery

12. If you are having surgery, make sure that you, your doctor, and your surgeon all agree on exactly what will be done.

13. If you have a choice, choose a hospital where many patients have had the procedure or surgery you need.

Other Steps

14. Speak up if you have questions or concerns.

15. Make sure that someone, such as your primary care doctor, coordinates your care.

16. Make sure that all your doctors have your important health information.

17. Ask a family member or friend to go to appointments with you.

18. Know that “more” is not always better.

19. If you have a test, do not assume that no news is good news.

20. Learn about your condition and treatments by asking your doctor and nurse and by using other reliable sources. medical treatment in accordance with the patient’s wishes and best interests, not supervening the wishes of a competent adult. A healthcare provider cannot act on behalf of the state to assert state interests. The Florida court found that when a healthcare provider, acting in good faith, follows the wishes of a competent and informed patient to refuse medical treatment, the healthcare provider is acting appropriately and cannot be subjected to civil or criminal liability.

The Court’s Decision

The Florida District Court of Appeals concluded that a healthcare provider must not be forced into the position of having to argue against the wishes of its own patient. Patients do not lose their right to make decisions affecting their lives when they enter a healthcare facility. A healthcare provider’s function is to provide

CHAPTER REVIEW

1. Each patient should be informed of his or her rights and responsibilities at the time of admission. If a patient does not understand his or her rights and responsibilities, they should be explained to the patient.

2. Patient rights include the right to admission examination and treatment, participate in care decisions, informed consent, refuse treatment, pain management, quality care, know one’s rights, know caregivers, an explanation of rights, ask questions, have special needs addressed, execute advance directives, compassionate care, confidentiality, privacy, a patient advocate, an ethics consultation, chaplaincy services, discharge, transfer, access medical records, know hospital’s adverse events, know third-party relationships, and patient education.

3. Patient responsibilities include maximizing healthy habits, such as exercising, not smoking, and eating healthy; being involved in healthcare decisions; working collaboratively with healthcare providers in developing treatment plans; disclosing relevant information and clearly communicating wants and needs; recognizing the risks and limits of medicine and the human fallibility of healthcare professionals; showing respect for other patients, caregivers, and visitors; making a good faith effort to meet financial obligations; providing caregivers with relevant medical complaints, symptoms, past illnesses, treatments, and hospitalizations; making it known whether one clearly understands the plan of care and course of treatment; following the agreed-upon treatment plan; and speaking up and asking questions.

4. Caregivers should consider themselves patient advocates because of their position to help patients who are often helpless and unable to speak for themselves.

Medical Records

Learning Objectives

The reader, upon completion of this chapter, will be able to:

• Describe the contents of medical records.

• Explain the importance of maintaining complete and accurate records.

• Explain the ownership of and who can access a patient’s medical record.

• Describe the advantages and disadvantages of electronic medical records.

• Describe why the medical record is important in legal proceedings.

• Describe a variety of ways in which medical records have been falsified.

• Explain what is meant by the medical record battleground.

Healthcare organizations are required to maintain a medical record for each patient in accordance with accepted professional standards and practices. The effective and efficient delivery of patient care requires that an organization determine its information needs. Organizations that do not centralize their information needs will often suffer scattered databases, which may result in such problems as duplication of data gathering, inconsistent reports, and inefficiencies in the use of economic resources.

The medical record is the principal means of communication among healthcare professionals in matters relating to patient care. Medical records provide pertinent information regarding the daily care and treatment of each patient; document each patient’s illness, symptoms, diagnosis, and treatment; serve as a planning tool for patient care; protect the legal interests of patients, caregivers, and healthcare organizations; provide a database for use in statistical reporting, continuing education, and research; and provide information necessary for third-party billing. Records must be complete, accurate, current, readily accessible, and systematically organized.

It’s Your Gavel…

RELEASE OF CONFIDENTIAL INFORMATION

Sanfiel, a psychiatric nurse, had his professional license suspended for 5 years after he intentionally disclosed confidential patient information to the news media. Sanfiel testified that he knew the information he possessed was confidential and that he understood the danger in disclosing psychiatric records to unauthorized persons. He also knew that a nurse could be disciplined for disclosing such information, yet he intentionally released information to the news media. The state board of nursing suspended Sanfiel’s nursing license and placed him on probation for 5 years for disclosing confidential patient information. The question arises: Was the state board of nursing authorized to suspend Sanfiel’s license because of his disclosure of information to the news media?

WHAT IS YOUR VERDICT?

Licensure rules and regulations contained in federal and state statutes often describe the requirements and standards for the maintenance, handling, signing, filing, and retention of medical records. Failure to maintain a complete and accurate medical record reflecting the treatment rendered may affect the ability of an organization and/or physician to obtain third-party reimbursement (e.g., from Medicare, Medicaid, or private insurance carriers). Under federal and state laws, the medical record must reflect accurately the treatment for which the organization or physician seeks payment. Thus, the medical record is important to the organization for medical, legal, and financial reasons. This chapter reviews several topics relating to the medical record.

15.1 INFORMATION MANAGEMENT

All organizations, regardless of mission or size, develop and maintain information management systems, which often include financial, medical, and human resource data. Information management is a process intended to facilitate the flow of information within and between departments and caregivers. An information management plan must address the information necessary in the care of each patient; process information in a logical manner to allow for quality patient care; address third-party payer needs; set goals and establish priorities; improve accuracy of data collection and medical record entries; provide uniformity of data collection and definitions; limit duplication of entries; deliver timely and accurate information; provide easy access to information; improve the security and confidentiality of information; improve collaboration across disciplines and the organization through information sharing; establish disaster plans for the recovery of information; orient and train staff on the information management system; and conduct an annual review of the plan that addresses the scope, organization, objectives, and effectiveness of the information management plan.

15.2 MEDICAL RECORD CONTENTS

Because the medical record fulfills many crucial roles within a healthcare organization, practitioners must strive to maintain the integrity and accuracy of records. The inpatient medical record includes, for example, the admission record, which describes pertinent demographic information; consent and authorization for treatment forms; advance directives; history and physical examination, including a preliminary/working diagnosis and findings that support the diagnosis; patient screenings and assessments (e.g., nursing, functional, nutritional, social, and discharge planning); treatment plans; physicians’ orders; progress notes; nursing notes; diagnostic reports; consultation reports; vital signs charts; anesthesia assessments; operative reports; medication administration records; discharge planning documentation; patient education; and discharge summaries.

15.3 DOCUMENTATION OF CARE

The importance of maintaining records of treatment rendered to a patient must not be underestimated. It may be many years after a patient has been treated before litigation is initiated; therefore, it is imperative that patient records of treatment in the physician’s office, as well as in the healthcare facility, be maintained. A jury could consider lack of documentation as sufficient evidence for finding a physician guilty of negligence.

Record Entries Accuracy

Medical record entries must be accurate. Such was not the case in Tulier-Pastewski v. State Board for Professional Medical Conduct,1 where two hospital administrators testified and showed undisputed proof that the physician had recorded a patient was alert during the purported examination when the patient was actually sedated and asleep. Evidence also indicated that the physician failed to properly document medical histories and current physical status. Although the physician asserted that evidence of failure to document did not support the findings of negligence because there was no expert testimony that her omissions actually caused or created a risk of harm to a patient, an expert witness testified that the missing information as to certain patients was needed for proper assessment of the patient’s condition and choice of treatment. This testimony, together with the importance of cardiac information when treating patients with chest pain, provided a rational basis for the conclusion by the administrative review board for professional medical conduct that the physician’s deficient medical recordkeeping could have affected patient care. The physician was found to be practicing medicine negligently on more than one occasion.

Nurse’s Charting

Nurses tend to access medical records more often than any other healthcare professional, simply because of the amount of time they spend delivering care to the patient. Because of the job description, the nurse monitors the patient’s illness, response to medication, display of pain and discomfort, and general condition. The patient’s care, as well as the nurse’s observations, should be recorded on a regular basis. The nurse should comply promptly and accurately with the physician orders written in the record. A nurse who has doubt as to the appropriateness of a particular order should verify with the prescribing physician the intent of the prescribed order.

Documentation and Reimbursement

When charting, professionals should be familiar with diagnosis-related groups (DRGs). DRGs refer to a methodology developed by professors at Yale University for classifying patients in categories according to age, diagnosis, and treatment resource requirements. It is the basis for the prospective payment system, contained in the 1983 Social Security Amendments for reimbursing inpatient hospital costs for Medicare beneficiaries. The key source of information for determining the course of treatment of each patient and the proper DRG assignment is the medical record. Reimbursement is based on preestablished average prices for each DRG. As a result of this reimbursement methodology, poor recordkeeping can precipitate financial disaster for a hospital. The potential financial savings for Medicare are substantial. Under this system of payment, if hospitals can provide quality patient care at a cost lower than the price established for a DRG, they keep the excess dollars paid. This is an incentive for hospitals to keep costs under control. There is, however, a continuing fear that patients may, to their detriment, be discharged too early for financial reasons. This, in turn, leads to costly malpractice suits.

Charting by Exception

Some healthcare professionals institute a practice of charting by exception. On April 9, 1986, Borras, in Lama v. Borras,2 while operating on Mr. Lama, discovered that the patient had an extruded disc and attempted to remove the extruded material. Either because Borras failed to remove the offending material or because he operated at the wrong level, the patient’s original symptoms returned several days after the operation.

On May 15, Borras operated again but did not order preoperative or postoperative antibiotics. On May 17, a nurse’s note indicated that the bandage covering the patient’s surgical wound was extremely bloody, which, according to expert testimony, indicates the possibility of infection. On May 18, the patient was experiencing local pain at the site of the incision, another symptom consistent with an infection. On May 19, the bandage was soiled again. A more complete account of the patient’s evolving condition was not available because the hospital instructed nurses to engage in charting by exception, a system whereby nurses did not record qualitative observations for each of the day’s three shifts, but instead made such notes only when necessary to chronicle significant changes in a patient’s condition.

On May 21, Dr. Piazza, an attending physician, diagnosed the patient’s problem as discitis—an infection of the space between discs—and responded by prescribing antibiotic treatment. Lama was hospitalized for several additional months while undergoing treatment for the infection.

After moving from Puerto Rico to Florida, Lama filed a tort action in the U.S. District Court for the district of Puerto Rico. Although the plaintiff did not claim that the hospital was vicariously liable for any negligence on the part of Borras, he alleged that the hospital failed to prepare, use, and monitor proper medical records.

The jury returned a verdict awarding the plaintiff $600,000 in compensatory damages. The district court ruled that the evidence was legally sufficient to support the jury’s findings, and an appeal was taken.

The U.S. Court of Appeals for the First Circuit upheld the decision of negligence based on the charting-by-exception policy, but the jury had to decide whether the violation of the regulation was a proximate cause of harm to Lama. Before deciding the case, the jury considered several important factors. For example, the jury may have inferred from evidence that, as part of the practice of charting by exception, the nurses did not regularly record certain information important to the diagnosis of an infection, such as the changing characteristics of the surgical wound and the patient’s complaints of postoperative pain. Further, because there was evidence that the patient’s hospital records described possible signs of infection that deserved further investigation (e.g., an excessively bloody bandage and local pain at the site of the wound), the jury could have reasonably inferred that the intermittent charting failed to provide the sort of continuous danger signals that would most likely spur early intervention by the physician.

Failure to Maintain Records

Failure to maintain patient records may occur when a healthcare professional is busy, overwhelmed, or preoccupied. In Braick v. New York State Department of Health,3 a physician was under review by a hearing committee of the New York State Review Board for Professional Medical Conduct. The committee reviewed 122 specifications of misconduct, which included gross negligence, failure to adequately maintain patient records, and failure to obtain informed consent. The committee revoked the physician-petitioner’s license. In reaching its decision, the committee found the bureau of professional medical conduct’s expert credible, including his opinion that the physician was ultimately responsible for what happened to his patients during the relevant surgeries, and the committee rejected the efforts of the physician and his expert to shift responsibility to nurses.

The petitioner appealed to the administrative review board for professional medical conduct, which affirmed the committee’s determination and penalty. An appeals court found the physician’s license had been properly revoked.

Medical Record Battleground

The contents of a medical record must not be tampered with after an entry has been made; therefore, the record should be used wisely. The record should be complete and accurate, as its purpose is to record the patient’s course of care, not be used as an instrument for registering complaints about another individual or the organization. Those individuals who choose to make derogatory remarks in a patient’s record about others might find themselves in a courtroom trying to defend such notations in the record. Inappropriate comments written during a time of anger may have been based on inaccurate information, which, in turn, could be damaging to one’s credibility and future statements.

15.4 PRIVACY ACT OF 1974

The Privacy Act of 1974, codified at 5 U.S.C. 552, was enacted to safeguard individual privacy from the misuse of federal records, to give individuals access to records concerning themselves that are maintained by federal agencies, and to establish a Privacy Protection Safety Commission. Section 2 of the Privacy Act reads as follows:

Hospital Workers Punished for Peeking at Clooney File

George Clooney and his companion got top billing when they were treated at a New Jersey hospital after a motorcycle accident last month. But while some nurses clamored to see the celebrity patients, other staff members were busy prying into the couple’s medical records, hospital officials said yesterday.

That curiosity proved to be costly. After an internal investigation, the hospital, Palisades Medical Center in North Bergen, has suspended 27 employees for a month without pay for violating a federal law on patient confidentiality.

—Bruce Lambert and Nate Schweber, The New York Times, October 10, 2007

[a] The Congress finds that (1) the privacy of an individual is directly affected by the collection, maintenance, use, and dissemination of personal information by Federal agencies; (2) the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information; (3) the opportunities for an individual to secure employment, insurance, and credit, and his right to due process, and other legal protections are endangered by the misuse of certain information systems; (4) the right to privacy is a personal and fundamental right protected by the Constitution of the United States; and (5) in order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary and proper for the Congress to regulate the collection, maintenance, use, and dissemination of information by such agencies. [b] The purpose of this Act is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to (1) permit an individual to determine what records pertaining to him are collected, maintained, used, or disseminated by such agencies; (2) permit an individual to prevent records pertaining to him obtained by such agencies for a particular purpose from being used or made available for another purpose without his consent; (3) permit an individual to gain access to information pertaining to him in Federal agency records, to have a copy made of all or any portion thereof, and to correct or amend such records; (4) collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information.

15.5 HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) (Public Law 104-191) was enacted by Congress to protect the privacy, confidentiality, and security of patient information. According to the Centers for Medicare and Medicaid Services, Title I of HIPAA protects health insurance coverage for workers and their families when they change or lose their jobs. Title II of HIPAA, the administrative simplification (AS) provisions, requires the establishment of national standards for electronic healthcare transactions and national identifiers for providers, health insurance plans, and employers. The AS provisions also address the security and privacy of health information. The standards are meant to improve the efficiency and effectiveness of the nation’s healthcare system by encouraging the widespread use of electronic data interchange in health care.

HIPAA standards are applicable to all health information in all of its formats (e.g., electronic, paper, verbal). It applies to both electronically maintained and transmitted information. HIPAA privacy standards include restrictions on access to individually identifiable health information and the use and disclosure of that information, as well as requirements for administrative activities such as training, compliance, and enforcement of HIPAA mandates.

Privacy Provisions

The HIPAA privacy provisions took effect on April 14, 2003. Key privacy provisions include the following:

• Patients must be able to access their record and request correction of errors.

• Patients must be informed of how their personal information will be used.

• Patient information cannot be used for marketing purposes without the explicit consent of the involved patients.

• Patients can ask their health insurers and providers to take reasonable steps to ensure that their communications with the patient are confidential. For instance, a patient can ask to be called at his or her work number, instead of home or cell phone number.

• Patients can file formal privacy-related complaints to the U.S. Department of Health and Human Services, Office for Civil Rights.

• Health insurers or providers must document their privacy procedures, but they have discretion on what to include in their privacy procedure.

• Health insurers or providers must designate a privacy officer and train their employees.

• Providers may use patient information without patient consent for the purposes of providing treatment, obtaining payment for services, and performing the nontreatment operational tasks of the provider’s business.

Security Provisions

The HIPAA security provisions took effect April 20, 2005. The security provision complements the privacy provision. HIPAA defines three segments of security safeguards for compliance: administrative, physical, and technical. Key provisions are as follows.

Administrative Safeguards

• Policies and procedures must be designed to clearly show how the entity will comply with the act.

• Entities that must comply with HIPAA requirements must adopt a written set of privacy procedures and designate a privacy officer to be responsible for developing and implementing all required policies and procedures.

• Policies and procedures must reference management oversight and organizational buy-in to comply with the documented security controls.

• Procedures should clearly identify employees or classes of employees who will have access to protected health information (PHI).

• Access to PHI in all forms must be restricted to only those employees who have a need for it to complete their job function.

• Procedures must address access authorization, establishment, modification, and termination.

• Entities must show that an appropriate ongoing training program regarding the handling of PHI is provided to employees performing health plan administrative functions.

• Covered entities that outsource some of their business processes to a third party must ensure that their vendors also have a framework in place to comply with HIPAA requirements.

• Care must be taken to determine if the vendor further outsources any data-handling functions to other vendors, while monitoring whether appropriate contracts and controls are in place.

• A contingency plan should be in place for responding to emergencies.

• Covered entities are responsible for backing up their data and having disaster recovery procedures in place.

• The recovery plan should document data priority and failure analysis, testing activities, and change control procedures.

• Internal audits play a key role in HIPAA compliance by reviewing operations, with the goal of identifying potential security violations.

• Policies and procedures should specifically document the scope, frequency, and procedures of audits.

• Audits should be both routine and event-based.

• Procedures should document instructions for addressing and responding to security breaches that are identified either during the audit or the normal course of operations.

Physical Safeguards

• Responsibility for security must be assigned to a specific person or department.

• Controls must govern the introduction and removal of hardware and software from the network.

• When equipment is retired, it must be disposed of properly to ensure that PHI is not compromised.

• Access to equipment containing health information should be carefully controlled and monitored.

• Access to hardware and software must be limited to properly authorized individuals.

• Required access controls consist of facility security plans, maintenance records, and visitor sign-in and escorts.

• Policies are required to address proper workstation use.

• Workstations should be removed from high-traffic areas, and monitor screens should not be in direct view of the public.

• If the covered entities use contractors or agents, they too must be fully trained on their physical access responsibilities.

Technical Safeguards

• Information systems housing PHI must be protected from intrusion.

• When information flows over open networks, some form of encryption must be used.

• If closed systems/networks are used, existing access controls are considered sufficient, and encryption is optional.

• Each covered entity is responsible for ensuring that the data within its systems have not been changed or erased in an unauthorized manner.

• Data corroboration, including the use of check sum, double-keying, message authentication, and digital signature, may be used to ensure data integrity.

• Covered entities must also authenticate entities with which it communicates.

• Authentication consists of corroborating that an entity is who it claims to be.

• Covered entities must make documentation of their HIPAA practices available to the government to determine compliance.

• Information technology documentation should also include a written record of all configuration settings on the components of the network because these components are complex, configurable, and always changing.

• Documented risk analysis and risk management programs are required.

Patient Objects to Record Notations

As noted in Dodds v. Johnstone,4 during a physical exam conducted on October 30, 2000, the appellee indicated in her progress notes that she believed the appellant had been using cocaine prior to her last office visit. Appellee’s notes read: “I believe by physical exam the patient was using cocaine on Friday before her office visit.” The appellant filed a complaint in which she alleged that the appellee was negligent in her diagnosis of the appellant and that, as a result, she incurred a loss of compensation for her automobile accident claim and suffered severe emotional distress. The court reviewed the record of proceedings before the trial court and found that there was no genuine issue of material fact as to negligent infliction of severe emotional distress, loss of employment opportunities, or a decreased insurance settlement as a result of the notation in the patient’s medical records.

15.6 OWNERSHIP AND RELEASE OF MEDICAL RECORDS

Healthcare providers who handle medical records must fully understand the related issues of ownership and privacy. Medical records are the property of the provider of care and are maintained for the benefit of the patient. Ownership resides with the organization or professional rendering treatment. Although medical records typically have been protected from public scrutiny by a general practice of nondisclosure, this practice has been waived under a limited number of specifically controlled situations. Both applicable law and the courts recognize that individuals have a right to privacy and to be protected from the mass dissemination of information pertaining to their personal or private affairs. The right of privacy generally includes the right to be kept out of the public spotlight. The Privacy Act of 1974 was enacted to safeguard individual privacy from the misuse of federal records and to give individuals access to records concerning themselves that are maintained by federal agencies.

Requests by Patients

Patients have a legally enforceable interest in the information contained in their medical records and, therefore, have a right to access their records. Patients may have access to review and obtain copies of their records, X-rays, and laboratory and diagnostic tests. Access to information includes that maintained or possessed by a healthcare organization or a healthcare practitioner who has treated or is treating a patient. Organizations and physicians can withhold records if the information could reasonably be expected to cause substantial and identifiable harm to the patient (e.g., patients in psychiatric hospitals, institutions for the mentally disabled, or alcohol and drug treatment programs).

Changes to HIPAA released by the U.S. Department of Health & Human Services (HHS) 45 CFR Parts 160 and 164 adopt rules on individuals’ right of access to protected health information that include, in part, the following:

• Expand individuals’ rights to receive electronic copies of their health information and to restrict disclosures to a health plan concerning treatment for which the individual has paid out of pocket in full.

• Require modifications to, and redistribution of, a covered entity’s notice of privacy practices.5

Failure to Release Patient Records

Failure to release a patient’s record can lead to legal action. The patient, for example, in Pierce v. Penman
6 brought a lawsuit seeking damages for severe emotional distress when physicians repeatedly refused to turn over her medical records. The defendants had rendered different professional services to the plaintiff for approximately 11 years. The patient moved and found a new physician, Dr. Hochman. She signed a release authorizing Hochman to obtain her records from the defendant physicians. Hochman wrote a letter for her records but never received a response. The defendants claimed that they never received the request. The patient changed physicians again and continued in her efforts to obtain a copy of the records. Eventually, the defendants’ offices were burglarized, and the plaintiff’s records were allegedly taken. The detective in charge of investigating the burglary stated that he was never notified that any records were taken. The court of common pleas awarded the patient $2,500 in compensatory damages and $10,000 in punitive damages. On appeal, the superior court upheld the award.

Requests by Third Parties

The medical record is a peculiar type of property because of the wide variety of third-party interests in the information contained in medical records. Healthcare organizations may not generally disclose information without patient consent. Policies regarding the release of information should be formulated to address the rights of third parties, such as insurance carriers processing claims, physicians, medical researchers, educators, and governmental agencies. Several cases are listed here where the right to privacy is nullified due to, for example, criminal investigations, Medicaid fraud, and substance abuse.

Criminal Investigation

The psychotherapist–patient privilege that exists under the federal rules of evidence can be overcome if the need for a psychiatric history outweighs a privacy interest. In In re Brink,7 the hospital sought to quash a grand jury request for the medical records pertaining to blood tests administered to a person under investigation. The court of common pleas held that physician–patient privilege did not extend to medical records subpoenaed pursuant to a grand jury investigation. A proceeding before a grand jury is considered secret in nature, inherently preserving the confidentiality of patient records.

Medicaid Fraud

Patient records may be obtained during investigations into such alleged criminal actions as Medicaid fraud. The defendant physician, Dr. Edwin Ekong, in the People v. Ekong,8 was held in contempt of court for failing to comply with a subpoena duces tecum that was issued by a grand jury for Medicaid patient records in his possession. The physician contended that he could not release the files because of physician–patient privilege. The Appellate Court of Illinois, Third District disagreed, holding that the grand jury was permitted to obtain the patient files and records that were in his possession because he was under investigation for Medicaid fraud.

Substance Abuse Records

The federal Drug Abuse and Treatment Act of 19729 and federal regulations provide that patient records relating to drug and alcohol abuse treatment must be held confidential and not disclosed except in specific circumstances. Unlike other medical records, drug and alcohol abuse records cannot be released until the court has determined whether a claimed need for the records outweighs the potential injury to the patient, patient–physician relationship, and treatment services being rendered. Because of these strict requirements, the courts have been reluctant to order the release of such records unless absolutely necessary.

15.7 FAILURE TO USE PATIENT DATA GATHERED

Caregivers are responsible for assuring that the information critical to a patient’s care is readily available to all caregivers in the opening pages of the record. Provider mistakes often occur because of the unwieldy, unorganized, and voluminous amount of information gathered on patients. Caregivers who fail to use the information collected when assessing patient needs may find themselves in a lawsuit. Take, for example, the patient who advised her physician that she was allergic to latex. Hospital staff, failing to take note of the allergy, inserted a latex catheter into the patient. As a result, the patient developed interstitial cystitis. Expert testimony was sufficient to establish to a reasonable degree of medical certainty that the catheter “caused” the patient’s chronic bladder disorder.10

Failure to Read Nursing Notes

A physician can breach his or her duty of care by failing to read nursing notes. In Todd v. Sauls,11 Mr. Todd was admitted to Rapides General Hospital on October 3, 1988, and the following day, Dr. Sauls performed bypass surgery. Postoperatively, Todd sustained a heart attack. During the following days, Todd did not ambulate well and suffered a weight loss of 19.5 pounds.

On October 17, the medical record indicated that Todd’s sternotomy wound and the mid-lower left leg incision were reddened and his temperature was 99.6°F. Sauls did not commonly read the nurses’ notes, instead preferring to rely on his own observations of the patient. In his October 18 notes, he indicated that there was no drainage. The nurses’ notes, however, show that there was drainage at the chest tube site. Contrary to the medical records showing that Todd had a temperature of 101.2°F, Sauls noted that the patient was afebrile.

On October 19, Sauls noted that Todd’s wounds were improving and he did not have a fever. The nurses’ notes indicated otherwise, with redness at the surgical wounds and a temperature of 100°F. No white blood cell count had been ordered. Again on October 20, the nurses’ notes indicated wound redness and a temperature of 100.8°F. No wound culture had yet been ordered. Dr. Kamil, one of Todd’s treating physicians, noted that Todd’s nutritional status needed to be seriously confronted and suggested that Sauls consider supplemental feeding. Despite this, no follow-up to his recommendation appears, and the record is void of any action by Dr. Sauls to obtain a nutritional consult.

Todd was transferred to the intensive care unit on October 21 because he was gravely ill with profoundly depressed ventricular function. The nurses’ notes for the following day describe the chest tube site as draining foul-smelling, bloody purulence. The patient’s temperature was recorded to have reached 100.6°F. This is the first time that Sauls had the test tube site cultured. On October 23, the culture report from the laboratory indicated a staph infection, and Todd was started on antibiotics for treatment of the infection.

On October 25, at the request of family, Todd was transferred to St. Luke’s Hospital. At St. Luke’s, Dr. Leatherman, an internist and invasive cardiologist, treated Todd. Dr. Zeluff, an infectious disease specialist, examined Todd’s surgical wounds and prescribed antibiotic treatment. Upon admission to St. Luke’s, every one of Todd’s surgical wounds was infected. Despite the care given at St. Luke’s, Todd died on November 2, 1988. The family brought a malpractice suit against the surgeon. The district court entered judgment on a jury verdict for the defendant, and the plaintiff appealed claiming the surgeon breached his duty of care owed to the patient by failing to (1) aggressively treat the surgical wound infections; (2) read the nurses’ observations of infections; and (3) provide adequate nourishment, allowing the patient’s body weight to rapidly waste away.

The Louisiana Court of Appeal held that Sauls committed medical malpractice when he breached the standard of care he owed to Todd. He was effectively ineligible for a heart transplantation, which was his only chance of survival because of the infections and malnourishment caused by Sauls’s malpractice. Sauls’s testimony convinced the court that he failed to aggressively treat the surgical wound infections, that he chose not to take advantage of the nurses’ observations of infection, and that he allowed Todd’s body weight to waste away, knowing that extreme vigilance was required because of Todd’s already severely impaired heart. Sauls’s medical malpractice exacerbated an already critical condition and deprived Mr. Todd of a chance of survival. An impaired nutritional status depresses the body’s immune system and adversely affects the body’s ability to heal wounds. Sauls had a responsibility to make certain that Todd received adequate calories and proteins.

15.8 RETENTION OF RECORDS

Retaining a patient’s medical records for long periods of time may seem unwieldy, but computers make the task practical, while also increasing efficiency for many other information management processes. The length of time medical records must be retained varies from state to state. A California court, for example, revoked the license of a nursing facility for failure to keep adequate records. In Yankee v. State Department of Health,12 the facility claimed that the word adequate was unclear and therefore the requirement was invalid. The court stated that the word adequate is not so uncertain as to render a penal statute invalid. Healthcare organizations, with the advice of an attorney, should determine how long records should be maintained, taking into account patient needs, statutory requirements, future need for such records, and the legal considerations of having the records available in the event of a lawsuit.

Failure to Preserve X-rays

The plaintiff in Rodgers v. St. Mary’s Hosp. of Decatur
13 filed a complaint for damages against a hospital, alleging that the hospital breached its statutory duty to preserve for 5 years all of the X-rays taken of his wife. He alleged that the hospital’s failure to preserve the X-ray was a breach of its duty arising from the state’s X-ray retention act and from the hospital’s internal regulations. The plaintiff asserted that because the hospital failed to preserve the X-ray, he was unable to prove his case in a lawsuit. The circuit court entered judgment in favor of the hospital, and the plaintiff appealed.

The Illinois Supreme Court held that a private cause of action existed under the X-ray retention act and that the plaintiff stated a claim under the act. The act provides that hospitals must retain X-rays and other such photographs or films for a period of 5 years. The hospital also argued that the loss of one X-ray out of a series of six should not be considered a violation of the statute. The court disagreed, finding the statute requires all X-rays be preserved, not just some of them.

15.9 ELECTRONIC MEDICAL RECORDS

To significantly reduce the tens of thousands of deaths and injuries caused by medical errors every year, health care organizations must adopt information technology systems that are capable of collecting and sharing essential health information on patients and their care, says a new report by the Institute of Medicine of the National Academies. These systems should operate seamlessly as part of a national network of health information that is accessible by all health care organizations and that includes electronic records of patients’ care, secure platforms for the exchange of information among providers and patients, and data standards that will make health information uniform and understandable to all, said the committee that wrote the report.14

The Health Information Technology for Economic and Clinical Health Act (HITECH) is designed to promote the widespread adoption and interoperability of health information technology. HITECH was enacted under Title XIII of the American Recovery and Investment Act of 2009 (Public Law 111-5). Under the act, the Department of Health and Human Services is promoting the expansion and adoption of health information technology through program funding. For more detailed information see the HHS website at http://www.healthit.gov.

Healthcare organizations undergoing computerization must determine user needs, design an effective system, select appropriate hardware and software, develop user training programs, develop a disaster recovery plan (e.g., provide for emergency power systems and back up files), and provide for data security. A reliable electronic information system requires knowledge-based planning and design. Solid planning and design can lead to improved patient care.

Advantages

Computers have become an economic necessity and play an important role in the delivery of health care by assisting healthcare providers in improving the quality of care. Electronic medical records provide timely access to patient information that includes demographics, problems lists, history and physical exams, vital signs, diagnostic test results (e.g., laboratory and radiology), and consultant reports. Other of the many advantages of electronic records include order entries for medications and diagnostic tests, generation of critical alerts (e.g., out-of-range test values and drug–drug and food–drug interactions), computer-assisted diagnosis and treatment, generation of reminders for follow-up testing, assistance in standardizing treatment protocols, improving the ability to timely share information with treating providers, improved productivity and quality, reduced charting costs, support for clinical education and research, generation and transmission of electronic prescriptions, and indefinite storage of medical records.

Large medical centers are generating more than 100,000 orders a week. At the Brigham and Women’s Hospital in Boston, laboratory and pharmacy results, pulmonary function, electroencephalography, and many other results-generating areas are based around the system. A strong aspect of the order-entry capability is its use of medical logic and medical expertise technology. The system flags cases where there have been duplicate physician orders and signals an allergy alert resulting in an order cancellation.15 Clearly, computers offer many advantages to today’s health care.

Disadvantages

Computers may be an economic necessity, but they are not perfect and have thus far proven to be costly investments. Computerization increases the risk of lost confidentiality and unauthorized disclosure of information. The rapid growth of the Internet has led to an explosion of technology crime and related illegal activities. Increases in cyber crime have led to a need for high-end technology products and services to combat these problems. Billions of dollars are spent annually to protect networks and critical infrastructures from cyber-based threats.

Although the number of healthcare organizations installing electronic medical records systems is growing rapidly, the ability to have a completely paperless electronic system remains a challenge. Organizations often find themselves with a hybrid system with various elements of a patient’s care recorded in both paper and electronic format. Although computerization is costly, the road to progress is reaping rewards by improving patient care and treatment.

15.10 LEGAL PROCEEDINGS AND THE MEDICAL RECORD

The ever-increasing frequency of personal injury suits mandates that healthcare organizations maintain complete, accurate, and timely medical records. The integrity and completeness of the medical record are important in reconstructing the events surrounding alleged negligence in the care of a patient. Medical records aid police investigations, provide information for determining the cause of death, and indicate the extent of injury in workers’ compensation or personal injury proceedings.

When healthcare professionals are called as witnesses in a proceeding, they are permitted to refresh their recollections of the facts and circumstances of a particular case by referring to the medical record. Courts recognize that it is impossible for a medical witness to remember the details of every patient’s treatment. The record, therefore, may be used as an aid in relating the facts of a patient’s course of treatment.

If a medical record is admitted into evidence in legal proceedings, the court must be assured the information is accurate, recorded at the time the event took place, and was not recorded in anticipation of a specific legal proceeding. When a medical record is introduced into evidence, its custodian, usually the medical records administrator, must testify as to the manner in which the record was produced and the way in which it is protected from unauthorized handling and change. If a record can be shown to be inaccurate or incomplete or that it was made long after the event it purports to record, its credibility as evidence will be diminished.

Records Authorship Questioned

The records purportedly relating to Belber’s treatment for a fractured wrist in Belber v. Lipson
16 were found not admissible as business records. Dr. Conway, a witness at trial who had possession of certain records, had no personal knowledge of the circumstances under which the records were prepared. Dr. Conway did not create the records and he did not testify as to the circumstances of their composition. Whether such records and other documents are admitted or excluded is governed by the facts and circumstances of the particular case, as well as by the applicable rules of evidence. Admission of a business record requires “the testimony of the custodian or other qualified witness.”17

A jury determined that Dr. Felix, the physician who treated Belber, had been negligent in repairing his wrist fracture. He argued that Dr. Conway’s documents should have been admitted into evidence. There was, however, no evidence in the trial record that these documents were in fact the medical records of Dr. Spinzia, who had provided follow-up care and treatment of Belber’s wrist. “Both parties tried to obtain Spinzia’s records during pretrial discovery but were told that the records had been destroyed in an accident.”18 In summary, there was no evidence of how the records came into Dr. Conway’s hands. The United States Court of Appeals, First Circuit, affirmed the finding of the circuit court, which found that the records were not admissible at trial.

Without a witness to testify as to the authenticity of records produced for trial, such records are not admissible as evidence.

Obviously a writing is not admissible … merely because it may appear upon its face to be a writing made by a physician in the regular course of his practice. It must first be shown that the writing was actually made by or under the direction of the physician at or near the time of his examination of the individual in question and also that it was his custom in the regular course of his professional practice to make such a record.19

15.11 FALSIFICATION OF RECORDS

When handling medical records, professionals must recognize that tampering with records sends the wrong signal to jurors and can shatter one’s credibility, and that altered records can create a presumption of guilt.

Falsifying Medical Records

The evidence in Dimora v. Cleveland Clinic Foundation
20 showed that the patient had fallen and broken five or six ribs; yet, upon examination, the physician noted in the progress notes that the patient was smiling and laughing pleasantly, exhibiting no pain upon deep palpation of the area. Other testimony indicated that she was in pain and crying. The discrepancy between the written progress notes and the testimony of the witnesses who observed the patient was sufficient to raise a question of fact. The court then considered the possible falsification of documents by the physician in an effort to hide the possible negligence of hospital personnel. The testimony of the witnesses, if believed, would have been sufficient to show that the physician falsified the record or intentionally reported the incident inaccurately in order to avoid liability for the negligent care of the patient. The intentional alteration or destruction of medical records to avoid liability for medical negligence is sufficient to show actual malice, and punitive damages may be awarded regardless of whether the act of altering, falsifying, or destroying records directly causes compensable harm.21

In another case, the court in the Matter of Jascalevich
22 held:

We are persuaded that a physician’s duty to a patient cannot but encompass his affirmative obligation to maintain the integrity, accuracy, truth and reliability of the patient’s medical record. His obligation in this regard is no less compelling than his duties respecting diagnosis and treatment of the patient since the medical community must, of necessity, be able to rely on those records in the continuing and future care of that patient.

Obviously, the rendering of that care is prejudiced by anything in those records, which is false, misleading or inaccurate. We hold, therefore, that a deliberate falsification by a physician of his patient’s medical record, particularly when the reason therefore is to protect his own interests at the expense of his patient’s, must be regarded as gross malpractice endangering the health or life of his patient.23

Tampering with Medical Records

Dr. McCroskey faced a lawsuit for the alleged tampering with documents. The state board of medical examiners, in a disciplinary hearing in State Board of Medical Examiners v. McCroskey,24 issued a letter of admonition to Dr. McCroskey based on a series of incidents arising out of the care of a patient’s stab wound. Although the patient’s condition was initially thought to be stable, he bled to death several hours after his admission to the hospital. Dr. McCroskey was the attending surgeon on the date of the incident and, therefore, responsible for the accurate completion of the patient’s medical record. Dr. McCroskey declined to accept the letter of admonition, and a formal disciplinary hearing was held.

Dr. McCroskey erased and wrote over a preoperative note made by another physician concerning the patient’s estimated blood loss. Specifically, the original record entry was completed by a surgical resident on the date of the patient’s death and stated that the patient’s blood loss just prior to surgery was “now greater than 3000 cc.” Sometime after the autopsy, Dr. McCroskey changed the record to read that the patient’s blood loss was “now greater than 2000 cc.”25 After listening to conflicting expert testimony, the administrative law judge (ALJ) concluded that the physician had not violated generally accepted standards of medical practice by adding the note to the patient’s medical record days or weeks after the patient’s death and then backdating the note to the date of the death.

On review of the ALJ’s decision, the board accepted the ALJ’s evidentiary finding that many physicians date a medical record entry to reflect the date of the medical event, rather than the date on which the entry was made. The board disagreed, however, with the ALJ’s conclusion that this fact brought McCroskey’s conduct within generally accepted standards of medical practice. Instead, the board determined that backdating a medical record entry falls below accepted standards of documentation. Having thus found two acts that fell below generally accepted standards of medical practice, the board concluded that Dr. McCroskey committed unprofessional conduct and issued a letter of admonition. On appeal, the court of appeals held that the board erroneously rejected the ALJ’s findings.

On further appeal by the board, the Colorado Supreme Court held that the findings of the board were supported by substantial evidence. Because of the expertise of the board, it was in a position to determine the seriousness of the physician’s conduct by placing the events in their proper factual context.

All three of the inquiry panel’s witnesses testified that the generally accepted standard of practice requires that a medical record entry be dated with the date it is made. Even one of McCroskey’s witnesses acknowledged that misdating the medical record was “certainly something that should not have been done.” McCroskey did not simply backdate a trivial note in a patient’s medical record. Instead McCroskey’s actions took place in the context of a patient’s death, which resulted in a coroner’s autopsy, peer review activities, publicity, and several legal actions. McCroskey was the attending physician responsible for the accuracy of the patient’s medical record, and yet he engaged in conduct that cast doubt upon the medical record’s integrity. Under these circumstances, the Board was justified in considering McCroskey’s conduct to violate the standard of care.26

FALSIFYING RECORDS

Citation:
Moskovitz v. Mount Sinai Med. Ctr., 635 N.E.2d 331 (Ohio 1994)

Facts

On November 10, 1987, Figgie removed a left Achilles tendon mass from Moskovitz. The tumor was found to be a rare form of cancer. A bone scan revealed that the cancer had metastasized. Moskovitz’s care was transferred to Figgie’s partner, Makley, an orthopedic surgeon specializing in oncology at University Hospitals. Makley received Figgie’s original office chart, which contained seven pages of notes documenting Moskovitz’s course of treatment from 1985 through November 1987. Makley thereafter referred Moskovitz to radiation therapy at University Hospitals and sent along a copy of page 7 of Figgie’s office notes to the radiation department at University Hospitals.

One month later, Makley’s office forwarded the chart to Figgie’s office; a copy was then sent to Moskovitz’s psychologist. In January 1988, Makley’s secretary requested that Figgie’s office return the chart to Makley. At this time, it was discovered that the original chart had mysteriously vanished. The problem arose on October 21, 1988, when Moskovitz filed a complaint for discovery seeking to ascertain information relative to a potential claim for medical malpractice. Moskovitz claimed that she had never refused to have the tumor biopsied, but discrepancies were noted in her medical record.

In his January 30, 1989, deposition, Makley produced a copy of page 7 of Figgie’s office chart. That copy was identical to the copy ultimately recovered by the plaintiff’s counsel from the radiation department records at University Hospitals. The copy produced by Makley contained a typewritten entry dated September 21, 1987, which stated: “Mrs. Moskovitz comes in today for her evaluation on the radiographs reviewed with Dr. York. He was not impressed that [the mass on Moskovitz’s left leg] was anything other than a benign problem, perhaps a fibroma. We [Figgie and York] will therefore elect to continue to observe.”

However, Figgie’s photostatic copy revealed that a line had been drawn through the sentence “We will therefore elect to continue to observe.” The copy further revealed that beneath the entry, Figgie had interlineated a handwritten notation: “As she does not want excisional Bx [biopsy] we will observe.” The September 21, 1987, entry was followed by a typewritten entry dated September 24, 1987, which states: “I [Figgie] reviewed the X-rays with Dr. York. I discussed the clinical findings with him. We [Figgie and York] felt this to be benign, most likely a fibroma. He [York] said that we could observe and I concur.” At some point, Figgie also had added to the September 24, 1987, entry a handwritten notation, “see above,” referring to the September 21, 1987, handwritten notation that Moskovitz did not want an excisional biopsy. Figgie, at his deposition on March 2, 1989, produced records, including a copy of page 7 of his office chart. Because his original chart had been lost between December 1987 and January 1988, Figgie had made this copy from the copy of the chart that had been sent to Moskovitz’s psychologist. The September 21, 1987, entry in the records produced by Figgie did not contain the statement “We will therefore elect to continue to observe.” That sentence had been deleted (whited out) on the original office chart from which the psychiatrist’s copy (and, in turn, Figgie’s copy) had been made, in a way that left no indication on the copy that the sentence had been removed from the original records.

Figgie maintained that he did not discover the mass on the left Achilles tendon until February 23, 1987, and that Moskovitz continually refused a workup or biopsy.

During discovery, another copy of page 7 of Figgie’s office chart, identical to the copy produced by Makley during his deposition, showed that the final sentence in the September 21, 1987, entry had been deleted from Figgie’s original office chart sometime between November and mid-December 1987, the alteration presumably occurring while Figgie possessed the original chart.

Eventually, Figgie’s entire office chart was reconstructed from copies obtained through discovery. The reconstructed chart contains no indication that a workup or biopsy was recommended by Figgie and refused by Moskovitz at any time prior to August 10, 1987. In a videotaped deposition before her death, Moskovitz claimed that she never refused to have the tumor biopsied. The panel found in favor of the defendants participating in that proceeding with the exception of Figgie, and the trial court agreed. A panel of arbitrators unanimously found that:

1. The evidence supported a finding that plaintiffs’ … decedent had a very good chance of long-term survival if the tumor was found to be malignant at a time when it was less than one centimeter in size. The evidence supported the fact that the tumor had not grown in size as of May 7, 1987. If Dr. Figgie had performed a biopsy prior to this date, the cancer would not have metastasized and the decedent would have recovered.

2. Dr. Figgie’s office chart, which is the primary reference material in analyzing a physician’s conduct, is filled with contradictions and inconsistencies.

3. Even if Dr. Figgie was first informed of the growth on February 23, 1987, he still fell below acceptable standards of care because he did not conduct further investigation until … X-rays performed in September 1987. All handwritten entries which appear on or prior to September 24, 1987, indicating that a biopsy was recommended or that the decedent refused further workup were subsequent changes of the records done to justify Figgie’s conduct. The sentence “We will therefore elect to continue to observe” on the September 21, 1987 entry was whited out and the handwritten entry “as she does not want excisional biopsy we will observe” was a subsequent alteration of the records. [Id. at 338]

The court of appeals upheld the finding of liability against Figgie on the wrongful death and survival claims. The court of appeals found that the appellant was not entitled to punitive damages as a matter of law. The court of appeals reversed the judgment of the trial court as to the award of damages and remanded the case for a new trial only on the issue of compensatory damages.

Issue

Is an intentional alteration or destruction of medical records to avoid liability sufficient to show actual malice? Can punitive damages be awarded regardless of whether the act of altering or destroying records directly causes compensable harm?

Holding

The Ohio Supreme Court held that the evidence regarding the physician’s alteration of the patient’s records supported an award of punitive damages, regardless of whether the alteration caused actual harm.

Reason

The intentional alteration or destruction of medical records to avoid liability for medical negligence is sufficient to show actual malice, and punitive damages may be awarded regardless of whether the act of altering, falsifying, or destroying records directly causes compensable harm. The jury’s award of punitive damages was based on Figgie’s alteration or destruction of medical records. The purpose of punitive damages is not to compensate a plaintiff, but to punish and deter certain conduct. The court warned others to refrain from similar conduct through an award of punitive damages.

Figgie’s alteration of records exhibited a total disregard for the law and the rights of Moskovitz and her family. Had the copy of page 7 of Figgie’s office chart not been recovered from the radiation department records at University Hospitals, the appellant would have been substantially less likely to succeed in this case. The copy of the chart and other records produced by Figgie would have tended to exculpate Figgie for his medical negligence while placing the blame for his failures on Moskovitz.

Discussion

1. Discuss what procedure should be followed when clarifying an entry in a patient’s medical record.

2. Is correction fluid helpful when clarifying medical record entries? Explain.

Falsifying Business Records

Falsification of medical or business records is grounds for criminal indictment, as well as for civil liability. In People v. Smithtown General Hospital,27 a motion to dismiss indictments against a physician and a nurse charged with falsifying business records in the first degree was denied. The surgeon was charged because he omitted to make a true entry in his operative report, and the nurse was charged because she failed to make a true entry in the operating room log.

Another such incident occurred in a rest home, where employees attempted to cover up the death of an elderly woman who had wandered away from the home and was found frozen in a drainage ditch.28 The deceased patient had been brought back into the home, was dressed in a nightgown, and was placed in her bed. On the basis of the account given by employees, a physician signed the death certificate stating that the 77-year-old patient died in her sleep. An anonymous tip to the county examiner’s office prompted an autopsy, and the patient was found to have frozen to death.

Nurse Changes Record Entries

In a well-publicized case that involved the death of a child, the nurse replaced her original notes with a second set of notes that were much more detailed and indicated that she had seen the patient more frequently than was reported in her original notes.29 Rewriting one’s notes in a patient’s medical record casts doubt as to the accuracy of other entries in the record. It is easier to explain why one did not chart all activities than it is to explain why a new entry was recorded and an original note replaced.

Alteration of Records

In criminal law, falsification of records with the intent to deceive another for personal gain is considered fraud. Fraud can also be considered an intentional tort. For example, writing a post-procedure note before actually beginning the procedure is, in reality, falsifying a patient’s record even though it might be considered normal practice for the physician. A physician who claims that notes are revised following the procedure if necessary is placing the patient in jeopardy if he fails to do so and that failure leads to injury during post-follow-up care.

Falsified Patient Records Are Untold Story of California Nursing Home Care

A supervisor at a Carmichael nursing home admitted under oath that she was ordered to alter the medical records of a 92-year-old patient, who died after developing massive, rotting bedsores at the facility.

In Santa Monica, a nursing home was fined $2,500 by the state for falsifying a resident’s medical chart, which claimed that the patient was given physical therapy 5 days a week. The catch? At least 28 of those sessions were documented by nurse assistants who were not at work on those days.

—Marjie Lundstrom, The Sacramento Bee, September 18, 2011

Failure to Record Patient’s Condition

The plaintiff in Gerner v. Long Island Jewish Hillside Med. Ctr.30 gave birth to her infant son at the defendant medical center. Dr. Geller, the attending pediatrician, arrived at the hospital 6 hours later. Geller, having noted and confirmed a slightly jaundiced condition, ordered phototherapy for the baby. After 3 days of treatment, the child’s bilirubin count fell to a normal level, and Geller ordered the patient discharged. The child today is brain damaged, with permanent neurologic dysfunction.

The plaintiff alleged medical malpractice on the part of both the medical center and Geller for failing to diagnose and treat the jaundice in a timely manner. Following examination before trial, the medical center motioned and was granted summary judgment. The plaintiff and Geller appealed.

The New York Supreme Court, Appellate Division, held that questions of fact precluded summary judgment for the hospital. A number of allegations were raised as to negligence attributed solely to hospital staff. For example, notes of attending nurses at the nursery failed to record any jaundiced condition or any reference to color until the third day after birth, despite the parents’ complaints to hospital personnel about the baby’s yellowish complexion. Additionally, Geller ordered a complete blood count and bilirubin test as soon as he learned of the first recorded observation by a nurse of a jaundiced appearance. Test results, which showed a moderately elevated bilirubin count, were not reported by the laboratory until 10 hours after the blood sample was drawn, and another 3 hours passed before Geller’s order for phototherapy was carried out. An issue was thus raised as to whether the 13-hour delay in commencement of the treatment was the proximate cause of the infant’s injuries.

15.12 ILLEGIBLE HANDWRITING

Illegible handwriting is as ancient as the first stylus. Perhaps the simplest, but one of the most potentially dangerous, problems with medical records is illegible entries. Unfortunately, poor penmanship can cause injury to patients. The American Medical Association encourages physicians to print, type, or computerize their orders. Medical errors because of poor handwriting can lead to extended length of hospital stays and, in some cases, the death of patients. A Harvard study found that “penmanship was among the causes of 220 prescription errors out of 30,000 cases.”31

The seriousness of handwriting mix-ups was well-noted when a Texas jury ordered a physician, drugstore, and pharmacist to pay $225,000 to the family. In this case, the 42-year-old patient died as a result of a handwriting mix-up on the medication prescribed for his heart. The patient had been given a prescription for 20 mg of Isordil to be taken four times per day; the pharmacist misread the physician’s handwriting and filled the prescription with Plendil, a drug for high blood pressure, which is usually taken at no more than 10 mg per day. As a result, Vasquez was given the wrong medication at eight times the recommended dosage. He died 2 weeks later from an apparent heart attack.32

15.13 TIMELY COMPLETION OF MEDICAL RECORDS

Not only must the chart be accurate, but healthcare professionals must promptly complete records after patients are discharged. Persistent failure to conform to a medical staff rule requiring physicians to complete records promptly can be the basis for suspension of medical staff privileges, as was the case in Board of Trustees Memorial Hospital v. Pratt.33

15.14 CONFIDENTIAL AND PRIVILEGED COMMUNICATIONS

Beyond the medical record lies an even more complex issue within healthcare organizations: communication. The duty of an organization’s employees and staff to maintain confidentiality encompasses both verbal and written communications and applies to consultants, contracted individuals, students, and volunteers. Information about a patient, regardless of the method in which it is acquired, is confidential and should not be disclosed without the patient’s permission. All healthcare professionals who have access to medical records have a legal, ethical, and moral obligation to protect the confidentiality of the information in the records, as well as verbal communications between physicians and patients. Communication between individual physicians and communication that occurs in peer review activities also falls under strict confidentiality procedures.

The Federal Health Care Quality Improvement Act of 1986
34 insulates certain medical peer review activities affecting medical staff privileges from antitrust liability. Peer review is protected as long as there is reasonable belief that it is conducted in the furtherance of quality care. In enacting this legislation, Congress recognized that without such antitrust immunity, effective peer review might not be possible. Privileged communications statutes do not protect from discovery the records maintained in the ordinary course of doing business and rendering inpatient care. Such documents often can be subpoenaed after showing cause.

The burden to establish privilege is on the party seeking to shield information from discovery. The party asserting the privilege has the obligation to prove, by competent evidence, that the privilege applies to the information sought.

Attorney–Client Privilege

Attorney–client privilege generally will preclude discovery of memoranda written to an organization’s general counsel by the organization’s risk management director. In Mlynarski v. Rush Presbyterian–St. Luke’s Medical Center,35 a memorandum written by the risk management coordinator to the hospital’s general counsel was barred from discovery. There was undisputed evidence that the risk management coordinator had consulted with and assisted counsel in determining the legal action to pursue and the advisability of settling a claim that she had been assigned to investigate. Information contained in the memorandum was available from witnesses whose names and addresses were made available to the plaintiff. If the hospital later at trial decided to attempt to impeach those witnesses based on the coordinator’s testimony, privilege would be waived and the hospital would be required to produce the relevant reports.

Physician–Patient Confidentiality

Patients enter the physician–patient relationship assuming that information acquired by physicians will not be disclosed, unless the patient consents or the law requires disclosure. Mutual trust and confidence are essential to the physician–patient relationship. An action alleging a breach of physician–patient confidentiality is analogous to invasion of privacy, and plaintiffs are entitled to recover damages, including emotional damages, for the harm caused by the physician’s unauthorized disclosure.

In such a case, Berger v. Sonneland,36 Berger revealed information during her initial appointment with Dr. Sonneland regarding her medical and personal history. When questioned about her personal history, Berger said that she had previously been married to Dr. Hoheim, a physician in Montana. She described her relationship with her ex-husband as extremely strained.

After meeting with Berger, Sonneland contacted Hoheim and discussed Berger’s use of pain medications. Based on information provided by Sonneland, Hoheim filed a motion in a Montana court seeking to modify the custody orders relating to the couple’s two children.

Berger sought damages for Sonneland’s breach of physician–patient confidentiality. The court granted Sonneland’s motion for summary judgment based on the absence of damage evidence, concluding that Berger failed to establish any objective symptoms of emotional distress. Berger moved for reconsideration, urging the court to apply invasion of privacy principles rather than principles related to the tort of negligent infliction of emotional distress.

During the course of events in this case, an appellate court held that a tort action exists for damages resulting from the unauthorized disclosure of confidential information obtained within the physician–patient relationship. The court also held that there is sufficient evidence to raise a question of fact as to whether Berger was injured by Sonneland’s unauthorized disclosure. The matter was remanded for further proceedings.

REPORTS OF THE JOINT COMMISSION PRIVILEGED FROM DISCOVERY

Citation:
Humana Hosp. Corp. v. Spears Petersen, 867 S.W.2d 858 (Tex. Ct. App. 1993)

Facts

The plaintiff, Garcia, sued Dr. Garg for negligently performing an injection, battery, fraud, and lack of informed consent. Garcia also sued Humana Corporation for negligence in credentialing, supervising, and monitoring Garg’s clinical privileges. The plaintiff’s attorney requested documents from Humana, including reports prepared by The Joint Commission. The Joint Commission is a voluntary organization that surveys healthcare organizations for the purpose of accreditation.

Humana objected to releasing the reports of The Joint Commission and filed for a protective order preventing disclosure. The Joint Commission reports contained recommendations describing the hospital’s noncompliance with certain of its published standards. Humana argued that The Joint Commission reports are privileged information under Texas statute. Under Texas law, the records and proceedings of a medical committee are considered confidential and are not subject to a court subpoena. The plaintiff argued that The Joint Commission is not a medical committee as defined in the Texas statute. The hospital’s chief operating officer testified that the accreditation process with The Joint Commission is voluntary and the hospital chooses to have the accreditation survey. During the survey, The Joint Commission looks at certain quality care standards it has developed for hospitals. Humana argued that release of The Joint Commission’s recommendations would do more than “chill” the effectiveness of such accreditation. The plaintiff argued that even if the information was privileged, it had already been disclosed to a third party, the hospital, thus waiving its rights to nondisclosure. The trial court denied Humana’s motion for a protective order that, if granted, would have permitted it to withhold from discovery any information pertaining to credentialing, monitoring, or supervision practices of the hospital regarding its physicians. Humana appealed.

Issue

Are accreditation reports prepared by The Joint Commission privileged from discovery?

Holding

The Texas Court of Appeals held that the accreditation reports were privileged.

Reason

The purpose of privileged communications is to encourage an open and thorough review of a hospital’s medical staff and operations of a hospital with the objective of improving the delivery of patient care. The plaintiff argued that The Joint Commission is not a medical committee as defined in the Texas statute. The court of appeals found that the determinative factor is not whether the entity is known as a “committee” or a “commission” or by any other particular term, but whether it is organized for the purposes contemplated by the statute and case law. The Joint Commission is organized for the purposes of improving patient care. Both Texas statute and case law recognize that the open, thorough, and uninhibited review that is required for such committees to achieve their purpose can only be realized if the deliberations of the committee remain confidential.

Discussion

1. Do you agree with the court’s decision? Explain your answer.

2. What did the court say as to the importance of privileged communications?

Privileged Information: Statements Protected

The court, in Wylie v. Mills,37 adopted the privilege used in several federal jurisdictions that prevents disclosure of confidential, critical, evaluative, and deliberative material whenever the public interest in confidentiality outweighs an individual’s need for full discovery. In applying the privilege to information contained in a corporate report on an accident in which an employee was involved, the court held that self-evaluation privilege protected the report from discovery. Without such protection, candid expressions of opinion or suggestions as to future policy would not be forthcoming as a result of a fear that these statements may be used against the employer in a subsequent litigation. The standard used for disclosure of confidential investigative records sets forth the following factors that should be taken into consideration: (1) the extent to which the information may be available from other sources, (2) the degree of harm that the litigant will suffer from its unavailability, and (3) the possible prejudice in the agency’s investigation. The court adopted the holding that the plaintiffs had not made a strong showing of a particular need that outweighs the public interest in the confidentiality of the quality assessment committee. Because information is available from other sources, the court found that the information sought by the plaintiff was readily discoverable.

Credentialing Files Privileged

An action was filed against a healthcare provider in Abels v. Ruf
38 for the negligent credentialing of a physician who allegedly committed medical malpractice. The credentialing file relative to the physician in question was privileged. There was no dispute that the provider’s credentialing documents fell within the scope of records of the provider’s peer review committee, and it was clear that the legislature had dictated that such documents were not obtainable from the provider. The Ohio Court of Appeals found that the trial court abused its discretion in ordering the appellant to provide certain credentialing documents to plaintiffs-appellees in discovery that may have been generated by the appellant’s peer review committee.

The trial court in Hammonds v. Ruf
39 erred when it ordered that certain portions of a physician’s credentialing file be disclosed to medical malpractice plaintiffs because the documents were obtainable from original sources. The trial court abused its discretion in ordering the documents in question to be disclosed by the physician in violation of a clear statutory mandate prohibiting such disclosures.

Ordinary Business Documents

Privileged communications statutes do not protect from discovery the records maintained in the ordinary course of doing business and rendering inpatient care. Such documents often can be subpoenaed after showing cause.

Committee Minutes Discoverable

When a plaintiff seeks case information that does not regard a committee’s action or its exchange of honest self-critical study but, instead, regards merely factual accountings of otherwise discoverable facts, such information is not protected by any privilege because it does not come within the scope of information entitled to that privilege. This does not mean that the plaintiff is entitled to the entire study because it may contain evidence of policy making, remedial action, proposed courses of conduct, and self-critical analysis that the privilege seeks to protect in order to foster the ability of hospitals to regulate themselves unhindered by outside scrutiny and unconcerned about the possible liability ramifications that their discussions might bring about. As such, the trial court must make an in-camera inspection of such records and determine to what extent they may be discoverable.

In one such case, the plaintiff, a patient, brought an action against a hospital seeking to recover for injuries he sustained as a result of a nosocomial infection he allegedly contracted at the hospital.40 The plaintiff claimed that his infection was a result of an act or omission on the part of the hospital in failing to protect him from such infections. During the discovery phase of the proceedings, the plaintiff filed a motion for production of documents seeking studies done by the hospital regarding the nosocomial infection rates per patients admitted. The hospital objected to this request, and the plaintiff obtained an order to compel the hospital to produce the documents. The court of appeal, on review, reversed the trial court’s ruling, determining that statutes rendering hospital records confidential barred the information from disclosure.

The Louisiana Supreme Court, however, held that the records sought by the plaintiff were not entirely privileged from disclosure. The reliance of the court of appeal on La. R.S. 13:3715.3(A) and 44:7(D) was partially misplaced. These provisions were intended to provide confidentiality to the records and proceedings of hospital committees, not to insulate from discovery certain facts merely because they have come under the review of any particular committee. Such an interpretation could cause any fact that a hospital chooses to unilaterally characterize as privileged to be barred from discovery. The plaintiff sought facts relating to nosocomial infection rates in the defendant’s hospital. A nosocomial infection is the same malady that gave rise to the plaintiff’s injuries. Such facts would be highly relevant to the plaintiff’s case or highly likely to lead to such evidence.

Peer Review Documents Privileged

In Estate of Hussain v. Gardner,41 discovery was sought regarding the statements given by a physician to the hospital’s internal peer review committee regarding the management and treatment of a patient. In this medical malpractice action, the plaintiff alleged that the defendant-physician deviated from accepted medical standards in the care and treatment of the decedent during surgical procedures. The New Jersey Superior Court held that the statements given by the defendant were protected.

In In re Investigation of Liberman,42 long-term patient Liberman fell and injured her head while unattended. She later died, apparently as a result of complications from the fall. The attorney general (AG) commenced a criminal investigation into Liberman’s death, with more than 15 employees being questioned by the AG. The AG obtained and executed an investigatory search warrant for hospital documents. Before the documents left the hospital’s premises, however, some of the documents were sealed because the hospital deemed them privileged peer review documents.

A hearing was held in district court regarding the AG’s motion for permission to unseal the documents. The district court was persuaded that the privilege statute asserted by the hospital did not apply because the documents were seized pursuant to a search warrant. The district court allowed the AG to unseal the documents, but the district judge stayed the decision to give the hospital an opportunity to appeal to the circuit court.

On appeal, the circuit court ruled that the peer review documents were protected by peer review privilege and that the privilege could be enforced even against documents seized pursuant to a search warrant. The court determined that the legislature intended the privilege to apply regardless of whether the documents were seized pursuant to a subpoena or a search warrant.

The Michigan statute MCL 333 § 21515 provides:

(1) peer review information is confidential; (2) peer review information is to be used “only for the purposes provided in this article;” (3) peer review information is not to be a public record; and (4) peer review information is not subject to subpoena.

The legislation commands that a hospital maintain a peer review process for the purpose of improving patient care. Allowing a prosecutor to obtain a hospital’s peer review materials pursuant to a search warrant would be to allow the prosecutor’s general investigative powers to override the specific privilege of confidentiality that covers such materials. Accordingly, the Michigan Court of Appeals concluded that documents created by a peer review body exclusively for peer review purposes are not subject to disclosure pursuant to a search warrant in a criminal investigation.

Peer Review Documents Not Privileged

The identity of peer review committee members and individuals who may have given information to such committees is not always considered privileged. A state, for example, may access peer review reports relating to a physician suspected of criminal negligence.43 In a civil action, a hospital may be required to identify all persons who have knowledge of an underlying event that is the basis of a malpractice action, whether or not they were members of a peer review committee.44

The surgeon in Robinson v. Magovern
45 brought an action under the Sherman Antitrust Act, as well as under state law, seeking recovery because he had been denied hospital privileges. The plaintiff moved in the U.S. District Court for an order compelling the defendants and certain third-party witnesses to respond to discovery requests and deposition questions. The defendants objected, claiming that the information sought was privileged and that the Pennsylvania Peer Review Protection Act seeks to foster candor and discussion at medical review committee meetings through grants of immunity and confidentiality. The court held that although there was a powerful interest in confidentiality embodied in the Pennsylvania Peer Review Protection Act, the Act would not be applied to shield from discovery events surrounding the denial of staff privileges, including what occurred at meetings of the hospital’s credentials committee and executive committee. The need for evidence was greater than the need for confidentiality in this case. The defendants’ objections were overruled, and the motion to compel was granted.

In a similar case, the physician in Ott v. St. Luke Hospital of Campbell County, Inc.46 brought a civil rights suit because his application for medical staff privileges was denied. The physician contended that he was not invited to several peer review committee meetings or given an opportunity to be heard. The hospital filed for a protective order that would bar discovery of the proceedings of the peer review committee. The hospital argued that such committees would become ineffective if their deliberations were discoverable and that the privilege claimed by the hospital is recognized in Section 311.377 of the Kentucky Revised Statutes Annotates (1990). The U.S. district court held that where there was no real showing that the peer review committee’s functions would be impaired substantially, and where the benefit gained for correct disposal of the litigation by denying privilege was overwhelming, the hospital would not be permitted to assert privilege. The hospital’s motion was therefore denied. The court indicated that it cannot permit the discharge of its responsibility to conduct a search for the truth to be thwarted by rules of privilege in the absence of strong countervailing public policies.

Staff Privileging Documents Discoverable

In May v. Wood River Township Hospital,47 the patient’s guardian sued the hospital and physicians, alleging that the hospital was negligent in providing care to the patient and in granting staff privileges to Dr. Marrese. The circuit court granted the guardian’s motion and ordered the hospital to answer certain interrogatories. The hospital appealed.

The hospital submitted a memorandum of law and an affidavit stating that all documents concerning the granting of associate staff privileges to Marrese were kept for the purpose of improving the quality of patient care and were protected by the Illinois Code of Civil Procedure.

The trial court denied the hospital’s motion for a protective order and granted the plaintiff’s motion to compel, ordering the hospital to answer all of the plaintiff’s interrogatories. The court determined that nothing related to work done, communications between executive committee members during their meetings, or discussions related to Marrese is protected; in addition, the minutes of the committee were also not protected as long as this information existed or was created before the actual decision to grant privileges to Marrese. The hospital urged on appeal, however, that no Illinois case has interpreted the code as being inapplicable to the credentialing process.

The Illinois Appellate Court held that the code of civil procedure did not protect information generated prior to the physician’s application for staff privileges or his application for the privileges. The same is true of a host of materials that might be considered by the committee, for example:

• Whether staff privileges were granted, denied, or revoked at other hospitals

• Whether licenses to practice medicine were awarded, denied, suspended, or revoked in a given state

• Whether an applicant has ever been sued for malpractice

These facts would exist independent of a peer review process. That which is nonprivileged cannot be converted to being privileged simply by handing the facts to a committee. On the other hand, if the committee sought to generate new opinions or information for consideration by the committee, a privilege could attach. For example, if the committee interviewed a colleague of Marrese’s to elicit an opinion on Marrese’s ability as a physician, that opinion could be privileged. If, however, the same opinion had been stated earlier in a deposition in a malpractice case and the committee reviewed the deposition, no privilege could attach to conceal the deposition from the discovery process.

Staff Credentialing Documents Not Discoverable

The underlying action in McGee v. Bruce Hospital System
48 involved a wrongful death claim. A circuit court order granted the plaintiffs a motion instructing the defendant, Bruce Hospital System, to produce the credentialing files and clinical privileges for each of the defendant-physicians. The defendant-physicians contended that such documentation is protected by South Carolina confidentiality statute [S.C. CODE ANN. § 40-71-20 (Supp. 1992)]. The trial judge found that the materials sought were discoverable.

On appeal, the South Carolina Supreme Court held that: (1) applications for staff privileges and supporting documents of appropriate training were protected by the confidentiality statute; (2) the confidentiality statute did not preclude discovery of general policies and procedures for staff monitoring; and (3) the patient could discover a listing of clinical privileges either granted or denied by the hospital. The overriding public policy of the confidentiality statute is to encourage healthcare professionals to monitor the competency and professional conduct of their peers in order to safeguard and improve the quality of patient care. The underlying purpose behind the confidentiality statute is not to facilitate the prosecution of civil actions but to promote complete candor and open discussion among participants in the peer review process.

Section 40-71-20 of the South Carolina statute does not preclude the discovery of the general policies and procedures for staff monitoring. The information contained in the written rules, regulations, policies, and procedures for the medical staff would not compromise the statutory goal of candid evaluation of peers in the medical profession.

The outcome of the decision-making process is not protected. The confidentiality statute was intended to protect the review process, not to restrict the disclosure of the result of the process. Accordingly, the plaintiffs were entitled to a listing of clinical privileges either granted or denied by the hospital.

15.15 CHARTING: SOME HELPFUL ADVICE

The medical record is the most important document in a malpractice action. Both the plaintiff and defendant use it as a basis for their actions and defense in a lawsuit. The following suggestions on documentation should prove helpful when charting in a patient’s record.

• The medical record describes the care rendered to a patient. It should provide a clear timeline of patient care needs and how they were addressed from the time of admission to the time of discharge. It should include a complete and accurate medical history and physical, medications at the time of admission, allergies, over-the-counter drugs, vitamins, differential diagnoses, treatment plan, care rendered, and follow-up instructions.

• Medical record entries should be timely, legible, clear, and meaningful to a patient’s course of treatment. Illegible medical records not only damage one’s ability to defend oneself in a court action, but also can have an adverse effect on the credibility of other healthcare professionals who read the record and act on what they read.

• Progress notes should describe the symptom(s) or condition(s) being addressed, the treatment rendered, the patient’s response, and status at the time inpatient care is discontinued. All notes must be dated and signed in order to provide an accurate history of the patient’s care and treatment during the hospital stay. Follow-up on other caregiver notes should be described in the progress notes (e.g., observations of consultants, dietitians, nurses, pharmacists, physical therapists, and respiratory therapists).

• Long, defensive, or derogatory notes should not be written. Only the facts should be related. Criticism, complaints, emotional comments, and extraneous remarks have no place in the medical record. Such remarks can precipitate a malpractice suit.

• Erasures and correction fluid should not be used to cover up entries. Do not tamper with the chart in any form. A single line should be drawn through a mistaken entry, the correct information entered, and the correction signed and dated.

• Charts related to pending legal action should be placed in a separate file under lock and key. Legal counsel should be notified immediately of any potential lawsuit.

• A medical record has many authors. Entries made by others must not be ignored. Good patient care is a collaborative interdisciplinary team effort. Entries made by healthcare professionals provide valuable information in treating the patient.

• Reasoning for not following the advice of a consultant should be noted in the medical record, not so as to discredit the consultant, but to show that due consideration was given to the consultant’s medical opinion.

The Court’s Decision

Sanfiel violated Florida Administrative Code by violating the confidentiality of information or knowledge concerning a patient. Florida Code Rule 59S-8.005 states in part that unprofessional conduct includes violating the confidentiality of information or knowledge concerning a patient. The board reasonably interpreted this provision to apply to the circumstances present in this case. Sanfiel knew that a nurse could be disciplined for disclosing such information, yet he intentionally released the information to the news media. It is reasonable to characterize Sanfiel’s actions as unprofessional conduct.49

CHAPTER REVIEW

1. Information management is the process of facilitating the flow of information within and among departments and caregivers.

2. The medical record is the principal means of communication among healthcare professionals in matters relating to patient care.

3. The contents of inpatient medical records provide evidence of a patient’s care from admission to discharge (e.g., admission record, authorization for treatment forms, advance directives, history and physical examination, treatment plans, physicians’ orders, progress notes, nursing notes, diagnostic reports, consultation reports, vital signs charts, anesthesia assessments, operative reports, medication administration records, discharge planning documentation, patient education, and discharge summary).

4. Patient care documentation must be complete and accurate. Federal funding can be denied for inaccurate record keeping.

5. The Privacy Act of 1974 was enacted in part to safeguard individual privacy from the misuse of federal records and to give individuals access to records concerning themselves that are maintained by federal agencies.

6. HIPAA requires the establishment of national standards for electronic healthcare transactions and national identifiers for providers, health insurance plans, and employers. HIPAA provisions also address the privacy and security of health information.

7. Medical records are maintained for the benefit of patients and are considered the property of the healthcare provider. Patients, providers of care, and third parties such as insurance carriers generally have access to patient records for billing purposes. They are also available for criminal investigations.

8. The requirements for the length of time medical records must be retained are based on statutory requirements, advice from legal counsel, patient needs, future need for the records, and legal considerations.

9. Although electronic medical records improve the ease and efficiency with which data are compiled and shared, they also pose confidentiality risks.

10. Records can be used as important evidentiary tools. The integrity and completeness of a medical record can be crucial in reconstructing the events surrounding alleged negligence.

11. Falsification of medical or business records is grounds for both criminal indictment and civil liability.

CHAPTER
13

Patient Consent

[N]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person.

—Union Pacific Ry. Co. v. Botsford1

Learning Objectives

The reader, upon completion of this chapter, will be able to:

• Explain the difference between consent and informed consent.

• Discuss the difference between verbal, written, and implied consent.

• Describe the role of the patient, physician, nurse, and hospital in informed consent.

• Describe the theories under which the validity of consent might be proven.

• Explain how consent differs among competent patients, minors, guardians, and incompetent patients.

• Discuss under what circumstances a patient might refuse treatment.

• Explain the available defenses for defendants as it relates to informed consent.

INTRODUCTION

Consent, in the healthcare setting, is the voluntary agreement by a person who possesses sufficient mental capacity to make an intelligent choice to allow a medical procedure and/or treatment proposed by another to be performed on himself or herself. Consent changes a touching that otherwise would be nonconsensual to one that is consensual. Consent can be either express or implied.

• Express consent can take the form of a verbal agreement, or it can be accomplished through the execution of a written document authorizing medical care.

• Implied consent is determined by some act or silence, which raises a presumption that consent has been authorized.

Consent must be obtained from the patient, or from a person authorized to consent on the patient’s behalf, before any medical procedure can be performed. Every individual has a right to refuse to authorize a touching. Touching of another without authorization to do so could be considered a battery. Not every touching results in a battery. When a person voluntarily enters a situation in which a reasonably prudent person would anticipate a touching (e.g., riding in an elevator or rushing through a crowded subway, emergency department), consent is implied. Consent is not required for the normal, routine, everyday touching and bumping that occurs in life. In the process of caring for patients, it is inevitable that they will be touched. Most touching in the healthcare setting is considered routine. Typical routine touching includes bathing, administering medications, dressing changes, and so forth. This chapter reviews the many issues surrounding consent.

13.1 INFORMED CONSENT

Informed consent is a legal doctrine that provides that a patient has the right to know the potential risks, benefits, and alternatives of a proposed procedure. Canterbury v. Spence,2 in 1972, set the “reasonable man” standard, which required informed consent for treatment. Patients must be informed of the risks, benefits, and alternatives associated with recommended treatments. Where there are two or more medically acceptable treatment options, the competent patient has the absolute right to know about and select from the available treatment options after being informed of the risks, benefits, and alternatives of each.

The informed consent doctrine provides that a physician has a legal, ethical, and moral duty to respect patient autonomy and to provide only such medical care as authorized by the patient. An authorization from a patient who does not understand to what he or she is consenting is not effective consent.

The right to be free from unwanted medical treatment has long been recognized by the courts. The right to control the integrity of one’s own body spawned the doctrine of informed consent.3 The U.S. Supreme Court, in Cruzan v. Director, Missouri Dep’t of Health,4 held that a competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment.

Verbal Consent

Verbal consent, if proved, is as binding as written consent because there is, in general, no legal requirement that a patient’s consent be in writing. However, oral consent is more difficult to corroborate.

Verbal Consent for Surgery Adequate

The plaintiff in Siliezar v. East Jefferson General Hospital
5 argued that the defendants breached the standard of care by failing to obtain written consent for a surgical procedure. The trial judge found that the plaintiff failed to sustain her burden of proof that the defendants were liable to her for damages. On appeal, the appellees admitted that they breached hospital policy by failing to obtain written consent prior to surgery. The physician testified that he explained the surgical procedure, as well as the risks of the procedure. He testified that after he explained the procedure and its risks, he left a written consent for the patient to sign. He explained that although it is the policy of the clinic to obtain a written consent prior to performing surgery, the patient did not sign the consent form. The surgeon testified that he did not know why the form was not signed but that the patient did not refuse to sign the form.

At trial, a nurse testified that she placed the patient in an operating room and prepared her for surgery. Although she was not in the room when the surgeon discussed the surgical procedure with the plaintiff, she testified that she was in the next room and was able to hear the physician explain the procedure to the plaintiff. The nurse also had no explanation as to why the consent was not signed. She did state that the patient never said she did not want surgery and did not ask the physician to stop the procedure. The nurse testified that as the physician performed the surgery, he explained to the patient what he was doing.

Louisiana statutes do not require that a patient’s consent be written. Verbal consent was sufficient. The verbal consent included the information required by statute, and the patient was given an opportunity to ask questions and those questions were answered. The plaintiff claimed that she was told that surgery would not be performed. The trial judge did not find her testimony to be credible. The appellate court found that the defendants did not commit malpractice by failing to obtain written consent prior to surgery.

Written Consent

A written consent form should be executed when a proposed treatment may involve some unusual risk(s) to the patient. A written consent provides visible proof of a patient’s wishes. Because the function of a written consent form is to preserve evidence of informed consent, the nature of the treatment, the risks, the benefits, and the consequences involved should be incorporated into the consent form. States have taken the view that consent, to be effective, must be informed consent and should include the following elements:

• Nature of the patient’s illness or injury

• Procedure or treatment consented to

• Purpose of the proposed treatment

• Risks and probable consequences of the proposed treatment

• Probability that the proposed treatment will be successful

• Alternative methods of treatment and their associated risks and benefits

• Risks and prognosis if no treatment is rendered

• An indication that the patient understands the nature of any proposed treatment, the alternatives, the risks involved, and the probable consequences of the proposed treatment

• Signatures of the patient, physician, and witnesses

• Date the consent is signed

Healthcare professionals have an important role in the realm of informed consent. They can be instrumental in averting major lawsuits by being observant as to the doubts, changes of mind, confusion, or misunderstandings expressed by a patient regarding any proposed procedures he or she is about to undergo.

Implied Consent

Although the law requires consent for the intentional touching that stems from medical or surgical procedures, exceptions do exist with respect to emergency situations. Implied consent will generally be presumed when immediate action is required to prevent death or permanent impairment of a patient’s health. If it is impossible in an emergency to obtain the consent of the patient or someone legally authorized to give consent, the required procedure may be undertaken without liability for failure to procure consent.

Unconscious patients are presumed under law to approve treatment that appears to be necessary. It is assumed that such patients would have consented if they were conscious and competent. However, if a conscious patient expressly refuses to consent to certain treatment, such treatment may not be instituted after the patient becomes unconscious. Similarly, conscious patients suffering from emergency conditions retain the right to refuse consent.

If a procedure is necessary to protect one’s life or health, every effort must be made to document the medical necessity for proceeding with medical treatment without consent. It must be shown that the emergency situation constituted an immediate threat to life or health.

In Luka v. Lowrie,6 a case involving a 15-year-old boy whose left foot had been run over and crushed by a train, consultation by the treating physician with other physicians was an important factor in determining the outcome of the case. On the boy’s arrival at the hospital, the defending physician and four house surgeons decided it was necessary to amputate the foot. The court said it was inconceivable that, had the parents been present, they would have refused consent in the face of a determination by five physicians that amputation would save the boy’s life. Thus, despite testimony at the trial that the amputation may not have been necessary, professional consultation before the operation supported the assertion that a genuine emergency existed and consent could be implied.

Consent also can be implied in nonemergency situations. For example, a patient may voluntarily submit to a procedure, implying consent, without any explicitly spoken or written expression of consent. In the Massachusetts case of O’Brien v. Cunard Steam Ship Co.,7 a ship’s passenger who joined a line of people receiving injections was held to have implied his consent to a vaccination. The rationale for this decision is that individuals who observe a line of people and who notice that injections are being administered to those at the head of the line should expect that if they join and remain in the line, they would receive an injection. The plaintiff entered the line voluntarily. The plaintiff had opportunity to see what was taking place at the head of the line and could have exited the line, but chose not to do so. The jury appropriately determined this to be consent to the injection. The O’Brien case contains all of the elements necessary to imply consent to a voluntary act: the procedure was a simple vaccination, the proceedings were visible at all times, and the plaintiff was free to withdraw up to the instant of the injection.

Whether a patient’s consent can be implied is frequently asked when the condition of a patient requires some deviation from an agreed-on procedure. If a patient expressly prohibits a specific medical or surgical procedure, consent to the procedure cannot be implied. The same consent rule applies if a patient expressly prohibits a particular extension of a procedure, even though the patient voluntarily submitted to the original procedure.

Statutory Consent

Many states have adopted legislation concerning emergency care. An emergency in most states eliminates the need for consent. When a patient is clinically unable to give consent to a lifesaving emergency treatment, the law implies consent on the presumption that a reasonable person would consent to lifesaving medical intervention.

When an emergency situation does arise, there may be little opportunity to contact the attending physician, much less a consultant. The patient’s records, therefore, must be complete with respect to the description of his or her illness and condition, the attempts made to contact the physician as well as relatives, and the emergency measures taken and procedures performed. If time does not permit a court order to be obtained, a second medical opinion, when practicable, is advisable.

Judicial Consent

Judicial consent may be necessary in those instances where there is concern as to the absence or legality of consent. Judicial intervention is periodically necessary to grant consent on an emergency basis when a court is not in session. A judge should be contacted only after alternative methods have been exhausted and the matter cannot wait for a determination during the normal working hours of the court. Some courts (e.g., Massachusetts trial courts) require an attorney to initiate the call to the justice and to certify that there are no alternatives, other than a judicial response, available in the matter.

13.2 PHYSICIANS AND INFORMED CONSENT

Informed consent is predicated on the duty of the physician to disclose to the patient sufficient information to enable the patient to evaluate a proposed medical or surgical procedure before submitting to it. Informed consent requires that a patient have a full understanding of that to which he or she has consented. A physician’s explanation of treatment options should take into consideration the patient’s ability to understand the description of the risks of treatment and the probable consequences of each treatment. The needs of each patient can vary depending on age, maturity, and mental status.

Informed consent should include what a reasonable person would consider material to his or her decision of whether or not to undergo treatment. Florida statute § 766.103 (3) (a) (2) notes that reasonable care on the part of a physician in obtaining informed consent for treatment consists of providing the patient with information sufficient to give a reasonable person a general understanding of the proposed procedure, the medically acceptable alternative procedures, and the substantial risks and hazards inherent in the proposed procedure that are recognized by other physicians in the same or similar community who perform similar procedures. A physician is not under a duty to elucidate upon all the possible risks, but only those of a serious nature. Expert testimony is required to establish whether a reasonable physician in the community would make the pertinent disclosures under the same or similar circumstances.

The ethical rationale underlying the doctrine of informed consent is firmly rooted in the notions of liberty and individual autonomy. Informed consent protects the basic right of the patient to make the ultimate informed decision regarding the course of treatment to which he knowledgeably consents. The focus of informed consent must involve the patient receiving informed consent as a result of active personal interaction with the physician. Consent forms should be used as a supplement to the oral disclosure of risks, benefits, and alternatives to the proposed procedure that a physician normally gives. Ideally, the consent should be the result of an active process of dialogue between the patient and physician.

Unreported Robot Surgery Injuries Open New Questions for FDA

When Sheena Wilson, 45, underwent robotic surgery for a hysterectomy in May, she didn’t know the Intuitive Surgical Inc. system used by her doctor was previously tied to a variety of injuries for the same procedure.

Her rectum was badly burned in the operation, said Wilson, a mother of two from Parlin, New Jersey. Now she is on long-term disability, fearful of losing her job and facing a third corrective surgery, she said in a telephone interview.

“If I had known there were other people who had injuries, I would never have done this surgery,” said Wilson, who has filed suit against Intuitive and her doctor. “Whatever they have in place is not working.”

—Robert Langreth, Bloomberg, December 30, 20138

Informed consent is not merely a tool to avoid lawsuits; rather, it is designed to allow patients to make an informed decision. The emphasis on informed must not be to avoid a lawsuit by meeting some legal requirement, with little regard to the patient’s level of understanding. The use of consent forms in this manner has contributed to the view that what was intended as a process of dialogue and discussion has developed into an event in which papers are signed and minimal legal requirements are satisfied. The consent form is often used as a legal protection for the physician for unforeseen mishaps that might occur during surgery.

Physicians Must Disclose Alternatives

The patient-plaintiff in Stover v. Surgeons
9 suffered damage to her heart valves as a result of childhood rheumatic fever. Dr. Ford, one of a group of physicians that the patient consulted after her condition worsened, informed the patient she needed a heart valve replacement. Dr. Ford stated that he briefly reviewed the details of the surgery with the patient. The plaintiff claims she was never informed about the risks associated with installing mechanical valves, including the Beall valve that was implanted in her. Thromboemboli, strokes, and the lifelong use of anticoagulants, which are common adverse effects of valve replacements, were never discussed with her. Dr. Zikria, who performed the surgery, could not recall discussing any risks, other than clotting. Following surgery, the patient suffered severe, permanent brain damage from multiple episodes of thromboemboli directly caused by valve implantation. She then sued for lack of informed consent. The jury returned a verdict for her and the physicians appealed. The Pennsylvania Superior Court held that the physicians had to discuss alternative prostheses with the patient where they represented medically recognized alternatives. Evidence that the heart valve actually implanted was no longer in general use at the time of operation was relevant and material to the issue of informed consent. The court reasoned that alternative valves were available and never discussed with the patient. Although the physicians argued that the choice of prosthesis should belong to them, the court held that if there are other recognized, medically sound alternatives, the patient must be informed about the risks and benefits of them in order to make a sound judgment regarding treatment, including the desire to execute a waiver of consent. The agreement between the physician and the patient is contractual. Consent is not valid if the patient does not understand the operation to be performed and its seriousness. Here the physicians failed to inform the patient about the recognized risks of the valve implanted.

Paternalism Fails

The patient-plaintiff in Matthies v. Mastromonaco,10 an elderly woman living alone in a senior citizens’ residence, fell and fractured her hip and was taken to the hospital. An orthopedic surgeon, the defendant, reviewed the patient’s history, condition, and X-rays and decided that, rather than using a pinning procedure for her hip involving the insertion of four steel screws, it would be better to adopt a conservative course of treatment, bed rest.

Prior to her injury, the plaintiff maintained an independent style of living. She did her own grocery shopping and other household duties and had been able to climb steps unassisted.

Expert testimony at trial indicated that bed rest was an inappropriate treatment. The defendant was of the opinion that given the frail condition of the patient and her age, she would be best treated in a nursing home and, therefore, opted for a more conservative treatment. At the heart of the informed consent issue was the plaintiff’s assertion that she would not have consented to bed rest if she had been informed of the probable effect on the quality of her life.

The New Jersey Supreme Court held that it is necessary to advise a patient when considering alternative courses of treatment. The physician should have explained medically reasonable invasive and noninvasive alternatives, including the risks and likely outcomes of those alternatives, even when the chosen course is noninvasive.

In an informed consent analysis, the decisive factor is not whether a treatment alternative is invasive or noninvasive, but whether the physician adequately presents the material facts so that the patient can make an informed decision. That conclusion does not imply that a physician must explain in detail all treatment options in every case. The standard obligates the physician to disclose only that information material to a reasonable patient’s informed decision.11 If the patient’s choice is not consistent with the physician’s recommendation, the physician has the option of withdrawing from the case. The patient, then, has the option to seek another physician who is comfortable with the alternative treatment preferred by the patient.

PHYSICIAN’S DUTY TO ADVISE: DELICATE MEDICAL JUDGMENT

Citation:
Mathias v. St. Catherine’s Hosp., Inc., 569 N.W.2d 330 (Wis. App. 1997)

Facts

Mathias, a patient of Dr. Witt’s at St. Catherine’s Hospital, delivered a full-term son by cesarean section on February 2, 1993, while she was under general anesthesia. In the operating room, Dr. Witt indicated that he needed a particular instrument that would be used in a tubal ligation. The nurses, Ms. Snyder and Ms. Perri, employees of St. Catherine’s, looked at Mathias’s chart. Ms. Snyder informed Dr. Witt that she could not find a signed consent form for the procedure. In deposition testimony, Ms. Snyder stated that Witt replied, “Oh, okay.”

Dr. Witt performed a tubal ligation. Three days after the procedure a nurse brought Mathias a consent form that had to be signed, telling Mathias the form was “just to close up our records.” The nurse testified in her deposition that she signed Ms. Perri’s name on that same consent form and backdated it to February 2, the day the surgery was performed. The trial court noted that these actions after the surgery were immaterial to the issue of the hospital’s duty to Mathias. The trial court granted summary judgment dismissing St. Catherine’s from the malpractice action. Mr. and Ms. Mathias appealed the summary judgment, contending that the hospital owed a duty to Mathias to prevent her physician from performing a tubal ligation for which there was no signed consent.

Issue

Did the hospital owe a duty to Mathias to prevent her physician from performing a tubal ligation for which there was no consent? Did the trial court err in granting summary judgment to St. Catherine’s?

Holding

The trial court’s grant of summary judgment was affirmed.

Reason

The duty to advise a patient of the risks of treatment lies with the physician and not the hospital. This duty is codified in Wisconsin Statute § 448.30, which requires the following:

Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physician’s duty to inform the patient under this section does not require disclosure of:

1. information beyond what a reasonably well qualified physician in a similar medical classification would know

2. detailed technical information that in all probability a patient would not understand

3. risks apparent or known to the patient

4. extremely remote possibilities that might falsely or detrimentally alarm the patient

5. information in emergencies where failure to provide treatment would be more harmful to the patient than treatment

6. information in cases where the patient is incapable of consenting

This statute is the cornerstone of the hospital’s duty in this case. The court noted that the legislature limited the application of the duty to obtain informed consent to the treating physician. The Mathiases sought to extend the duty of ensuring informed consent to the hospital.

The duty to inform rests with the physician and requires the exercise of delicate medical judgment. It is the physician—not the hospital—who has the duty to obtain informed consent. The surgeon, not the hospital, has the education, training, and experience necessary to advise each patient of the risks associated with a proposed procedure. The physician is in the best position to know the patient’s medical history and to evaluate and explain the risks of treatment options.

Discussion

1. Do you agree with the court’s finding that the hospital had no legal duty to ensure that Witt obtain informed consent from Mathias? Explain.

2. What issues do you see in another nurse’s decision to sign Perri’s name on the consent form and then backdate it to February 2, 1993?

Adequacy of Consent

When questions arise as to whether the risks, benefits, and alternatives to treatment are adequate, the courts require that physicians reveal to their patients the information that skilled physicians of good standing would provide under the same or similar circumstance. The plaintiff in Ramos v. Pyati
12 had injured his thumb while at work. The plaintiff was diagnosed as having a ruptured thumb tendon. The plaintiff consented to a surgical repair of the thumb. During surgery, the defendant discovered that scar tissue had formed, causing the ends of the tendons in the thumb to retract. As a result, the surgeon decided to use a donor tendon to make the necessary repairs to the thumb. He chose a tendon from the ring finger. On discovering additional disability from the surgery, the plaintiff filed a suit alleging that his hand was rendered unusable for his employment as a mechanic and that the defendant had breached his duty by not advising him of the serious nature of the operation, by not exercising the proper degree of care in performing the operation, and by failing to discontinue surgery when he knew or should have known that the required surgery would most likely cause a greater disability than the already injured condition of the thumb. The plaintiff testified that although he signed a written consent form authorizing surgery on his thumb, he did not consent to a graft of his ring finger tendon or any other tendon. The plaintiff’s expert witness testified that the ring finger is the last choice of four other tendons that could have been selected for the surgery. The circuit court entered a judgment for the plaintiff, and the defendant appealed. The appellate court upheld the judgment for the plaintiff, finding that the plaintiff had not consented to use of the ring finger tendon for repair of the thumb tendon.

Lack of Consent

Four children, in Riser v. American Medical Intern, Inc.,13 brought a medical malpractice action against Lang, a physician who performed a femoral arteriogram on their 69-year-old mother, Riser, who subsequently died of a stroke 11 days following the procedure. Riser had been admitted to De La Ronde Hospital experiencing impaired circulation in her lower arms and hands. The patient had multiple medical diagnoses, including diabetes mellitus, end stage renal failure, and arteriosclerosis. Her physician, Dr. Sottiurai, ordered bilateral arteriograms to determine the cause of the patient’s impaired circulation. Because De La Ronde Hospital could not accommodate Sottiurai’s request, Riser was transferred to Dr. Lang, a radiologist at St. Jude Hospital. Dr. Lang performed a femoral arteriogram, not the bilateral brachial arteriogram ordered by Sottiurai. The procedure seemed to go well, and the patient was prepared for transfer back to De La Ronde Hospital. However, shortly after the ambulance departed the hospital, the patient suffered a seizure in the ambulance and was returned to St. Jude. Riser’s condition deteriorated, and she died 11 days later. The plaintiffs claimed in their lawsuit that Riser was a poor risk for the procedure.

The district court ruled for the plaintiffs and Dr. Lang appealed. On appeal, the Louisiana Court of Appeal found no error in the trial court’s decision. Testimony revealed that Dr. Lang breached the standard of care by performing a procedure that he knew or should have known would have had no practical benefit to the patient or her referring physician.

As to informed consent, a reasonably prudent person in the position of Riser would have refused to undergo the procedure if he or she had known of the strong possibility of a stroke. Informed consent requires that the physician reveal to the patient all material risks. The consent form itself did not contain express authorization for Dr. Lang to perform the femoral arteriogram. Sottiurai ordered a brachial arteriogram, not a femoral arteriogram. Two consent forms were signed; neither form authorized the performance of a femoral arteriogram. O’Neil, one of Riser’s daughters, claimed that, following the arteriogram, her mother said, “Why did you let them do that to me?”14

Although Dr. Lang claims that he explained the procedure to Riser and O’Neil, the trial court, faced with this conflicting testimony, chose to believe the plaintiffs. The defendants argued that the plaintiffs had not established a causal connection between the arteriogram and the stroke. There was conflicting testimony between the pathologists who testified at trial as to the cause of the patient’s death. The judge chose to believe the pathologist’s testimony that it was more probable than not that the stroke resulted from the arteriogram performed by Dr. Lang.

13.3 HOSPITALS AND INFORMED CONSENT

Hospitals generally do not have an independent duty to obtain informed consent or to warn patients of the risks of a procedure to be performed by a physician who is not an agent of the hospital. It is the treating physician who has the education, expertise, skill, and training necessary to treat a patient and determine what information a patient should have in order to give informed consent. Hospital employees do not normally possess the knowledge of a particular patient’s medical history, diagnosis, or other circumstances that would enable the employee to fully disclose all pertinent information to the patient. Ohio Revised Code, for example, provides:

2317.54 Informed consent to surgical or medical procedure or course of procedures.

No hospital, home health agency, ambulatory surgical facility, or provider of a hospice care program or pediatric respite care program shall be held liable for a physician’s failure to obtain an informed consent from the physician’s patient prior to a surgical or medical procedure or course of procedures, unless the physician is an employee of the hospital, home health agency, ambulatory surgical facility, or provider of a hospice care program or pediatric respite care program.15

Although hospitals do not generally have responsibility of providing patients with informed consent, there are cases where hospitals have been found to owe a duty to provide patients with informed consent. For example, the patient-plaintiff, Keel, in Keel v. St. Elizabeth Medical Center, Ky.,16 filed a medical malpractice action alleging that the hospital failed to provide him with informed consent when he went there for a computed tomography (CT) scan. The scan involved the injection of a contrast dye material. Prior to the test, Keel was given no information concerning any risks attendant to the procedure. The dye was injected, and the scan was conducted. However, the plaintiff developed a thrombophlebitis at the site of the injection.

The plaintiff argued that expert medical testimony was not required in order to prove the absence of informed consent. The hospital argued that the question of informed consent, like the question of negligence, must be determined against the standard of practice among members of the medical profession.

The circuit court granted summary judgment to the hospital on the grounds that the plaintiff failed to present expert testimony on the issue. The plaintiff appealed.

The Kentucky Supreme Court held that expert testimony was not required to establish lack of informed consent and that the hospital had a duty to inform the patient of the risks associated with the procedure. In view of the special circumstances of this case, the court found it significant that the hospital offered Keel no information whatsoever concerning any possible hazards of this particular procedure, while at the same time the hospital admits that it routinely questions every patient about to undergo a dye injection as to whether he or she has had any previous reactions to contrast materials. The questions to patients regarding reactions to CT scans demonstrated that the hospital recognized the substantial possibility of complications. The inconsistencies here were found to be apparent without the need for expert testimony.

Life or Death: Right to Choose

Vega, a Jehovah’s Witness, in Stamford Hospital v. Nelly E. Vega,17 executed a release requesting that no blood or its derivatives be administered to her during her hospitalization. Vega’s husband also signed the release. She delivered a healthy baby. Following the delivery, Vega bled heavily. Her obstetrician, Dr. Sood, recommended a dilation and curettage (D&C) to stop the bleeding. Although Vega agreed to permit Dr. Sood to perform the D&C, she refused to allow a blood transfusion.

Vega’s condition continued to worsen. Eventually, when she was having difficulty breathing, her physicians placed her on a respirator in the intensive care unit. Because Dr. Sood and other physicians involved in Vega’s care believed that it was essential that she receive blood in order to survive, the hospital filed a complaint requesting that the court issue an injunction that would permit the hospital to administer blood transfusions. The trial court convened an emergency hearing at the hospital. Vega’s physicians testified that, with reasonable medical certainty, she would die without blood transfusions. Her husband testified that, on the basis of his religious beliefs as a Jehovah’s Witness, he continued to support his wife’s decision to refuse transfusions. The court, relying on the state’s interests in preserving life and protecting innocent third parties and noting that Vega’s life could be saved by a blood transfusion, granted the hospital’s request for an injunction permitting it to administer blood transfusions. Vega recovered and was discharged from the hospital.

The Connecticut Supreme Court determined that the hospital had no common law right or obligation to thrust unwanted medical care on a patient who, having been sufficiently informed of the consequences, competently and clearly declined that care. The hospital’s interests were sufficiently protected by Vega’s informed choice, and it was not for the court to override that choice. Vega’s common-law right of bodily self-determination was entitled to respect and protection. The trial court improperly issued an injunction that permitted the hospital to administer blood transfusions to Vega. The question as to state interests in saving the life of a healthy mother and child was left for another day. Justice J. Palmer, in a concurring opinion, stated, “By declining the opportunity to address the issue of the state’s interest in such a case, we leave unanswered—without good cause, in my judgment—a question that is central to the fundamental issue presented by this appeal and one that was raised both in the trial court and on appeal.”18

13.4 NURSES AND INFORMED CONSENT

In general, a nurse has no duty to advise a patient as to a particular procedure to be employed; advise the patient as to the risks, benefits, and alternatives to a recommended procedure; or obtain a patient’s informed consent prior to surgery merely because the physician directed a nurse to have the patient sign a consent form.

The plaintiff, Davis, in Davis v. Hoffman,19 experienced pain in her lower abdomen and consulted Dr. Hoffman. He diagnosed her to be suffering from a fibroid uterus and prescribed a D&C procedure designed to remove the fibroids. Hoffman further suggested a laparoscopy and hysteroscopy to search for cancer. The plaintiff claimed that she specifically informed Hoffman and Puchini (the doctor’s nurse) that she did not consent to a hysterectomy. They responded that they would awaken her during the operation to obtain her consent before proceeding to a hysterectomy. The plaintiff underwent a procedure that resulted in a hysterectomy, during which no one awakened Davis to discuss and explore possible alternatives. The plaintiff brought an action for lack of informed consent against Hoffman, Puchini, and the hospital.

In response to the plaintiff’s allegation that the hospital committed battery by lack of informed consent to the hysterectomy, the hospital asserted that Pennsylvania law places no duty on a hospital to obtain a patient’s consent to an operation. The hospital argued that Pennsylvania courts have applied the doctrine of informed consent only to physicians, not to hospitals. The plaintiff responded that the hospital gratuitously undertook to obtain her consent prior to the operation. Although the consent form authored and printed by the hospital was used, there was no suggestion that the deficiency in consent was in any way causally inadequate in the form. Rather, any failure was attributed to the omissions in the way the form was filled in or in the way the patient was not informed as to the next phase of the operation. Thus, the form was causally irrelevant and could not be a basis for finding liability.

Because nurses do not have a duty to obtain informed consent in Pennsylvania, the plaintiff had not stated a claim for battery by lack of informed consent against Puchini. Pennsylvania law generally imposes no duty on persons other than surgeons to obtain informed consent prior to surgery.

13.5 VALIDITY OF CONSENT

Some courts have recognized that the condition of a patient may be taken into account to determine whether the patient has received sufficient information to give consent. The individual responsible for obtaining consent must weigh the importance of giving full disclosure to the patient against the likelihood that such disclosure will seriously and adversely affect the condition of the patient.

The courts generally use a “subjective” or “objective” test to determine whether a patient would have refused treatment if the physician had provided adequate information as to the risks, benefits, and alternatives of the procedure. Under the subjective test theory, the court examines whether the “individual patient” would have chosen the procedure if he or she had been fully informed. In the objective test, the plaintiff must prove that a “reasonable person” would not have undergone the procedure if he or she had been properly informed. As described in the following cases, the courts favor the objective test.

Subjective Standard

The subjective standard relies solely on the patient’s testimony. Patients must show that they would not have consented to the procedure(s) had they been advised of the particular risk in question. Proponents of the subjective standard argue that a patient should have the right to make medical decisions regarding his or her care regardless of whether the determination is rational or reasonable. The subjective standard, however, potentially places the physician in jeopardy of the patient’s hindsight and bitterness. The subjective standard is premised on the credibility of a patient’s testimony.

Objective Standard

When applying the objective standard, the finder of fact may take into account the characteristics of the plaintiff, including the plaintiff’s idiosyncrasies, fears, age, medical condition, and religious beliefs. Accordingly, the objective standard affords the ease of applying a uniform standard and yet maintains the flexibility of allowing the finder of fact to make appropriate adjustments to accommodate the individual characteristics and idiosyncrasies of an individual patient. The standard to be applied in informed consent cases is whether a reasonable person in the patient’s position would have consented to a procedure or treatment in question if adequately informed of all significant perils. Under the objective analysis, the plaintiff’s testimony is only one factor when determining the issue of informed consent. The issue is not whether a particular patient would have chosen a different course of treatment; the issue is whether a reasonable patient would have chosen a different course of treatment.

Warren, in Warren v. Schecter,20 was diagnosed as having a stomach ulcer. Dr. Schecter recommended surgery to remove the portions of the stomach containing the ulcer. One of the significant risks of gastric surgery is decreased calcium absorption, leading to early and severe metabolic bone disease. It was Dr. Schecter’s role as the surgeon to advise Warren of the risks of surgery in order to obtain informed consent. Although he did not discuss these risks with her, he did advise Warren that she might experience bowel obstructions, dumping syndrome involving nausea, and the slight risk of death from anesthesia. Based on the risks disclosed to Warren, she consented to the surgery, which Dr. Schecter performed.

Following surgery, Warren developed dumping syndrome, a side effect that occurs in approximately 1% of the patients who undergo this procedure. Warren returned to Dr. Schecter, who recommended a second surgery to relieve the pain and discomfort from the first surgery. The second surgery would enhance the risk of bone disease. However, Dr. Schecter again failed to advise Warren of the risk of metabolic bone disease. Warren was eventually taken to a hospital emergency department where she was advised that she had suffered a fracture of one of her lumbar vertebrae and that previous surgeries led to osteoporosis that resulted in a fracture.

Warren filed an action for medical negligence, alleging that Dr. Schecter was liable under an informed consent theory for performing surgery without advising her of the risk of metabolic bone disease. Warren claimed that had Dr. Schecter warned her of the risk of metabolic bone disease, she would not have consented to surgery. The jury decided that: (1) Dr. Schecter did not disclose to Warren all relevant information that would enable her to make an informed decision regarding surgery; (2) a reasonably prudent person in Warren’s position would not have consented to surgery if adequately informed of all the significant perils; and (3) Dr. Schecter’s negligence was a cause of injury to Warren.

On appeal, the plaintiff was found entitled to compensation for all damages proximately resulting from the physician’s failure to give full disclosure of the risks of surgery. The patient was entitled to recover because she would not have consented to any surgery had the true risk been disclosed. A plaintiff meets the burden of establishing a causal relationship between the physician’s failure to inform and the injury to the plaintiff by demonstrating that a prudent person in the plaintiff’s position would have declined the procedure if adequately informed of the risks. Under the objective standard, Warren had only to prove that a prudent person in her position would not have consented if adequately informed of the risks. Dr. Schecter failed to provide Warren with the risks and benefits of the surgical procedures prior to obtaining her consent for the operations.

OBJECTIVE TEST PREFERRED

Citation:
Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119 (Tenn. 1999)

Facts

Ashe underwent a double mastectomy and chemotherapy in 1988. By 1993, she began experiencing problems with a cough and a fever. She returned to her oncologist, Dr. Kuzu, where she presented a variety of symptoms, including fever, cough, weight loss, and decreased appetite. A chest X-ray and a CT scan revealed the presence of a mass in her left lung.

Ashe underwent surgery, and the upper portion of her left lung was removed. She underwent chemotherapy and was referred to the defendant, Dr. Stroup, who prescribed radiation treatment. Ashe agreed to radiation treatment and was later diagnosed with radiation myelitis caused by a permanent radiation injury to her spinal cord. She is now a paraplegic. Dr. Stroup did not inform Ashe that the radiation treatment might result in a permanent injury to her spinal cord.

Ashe filed an action alleging claims for medical malpractice and lack of informed consent. Dr. Perez, Ashe’s expert, testified that the risk of spinal cord injury was 1% to 2%. Perez testified that the applicable standard of care required physicians to warn patients about the risk of radiation injury to the spinal cord. Ashe testified that she would not have consented to radiation therapy had she been informed of the risk of paralysis. On cross-examination, defense counsel pointed out that the plaintiff did equivocate in her deposition on the issue of consent. Her deposition testimony indicated that she did not know what she would have done had she been warned about the risk of spinal cord injury. She then testified on redirect examination that if Dr. Stroup had said to her, “‘Patty, if you do this, there is a risk that you will be in a wheelchair six months from now,’ I would have told him, ‘I will take my chances.’ I would not have it done.”

The trial court found that the plaintiff’s trial testimony conflicted with her deposition testimony regarding whether she would have consented to the procedure had she been warned of the risk of spinal cord injury. The trial court, therefore, struck the trial testimony and granted the defendant a directed verdict on the informed consent claim. The plaintiff’s malpractice claim went to the jury. The jury was unable to reach a verdict, and a mistrial was declared.

The plaintiff appealed to the court of appeals. The court of appeals held that, as part of the plaintiff’s informed consent claim, she was required to prove that a reasonable person knowing of the risk for spinal cord injury would have decided not to have the procedure performed. The court held that the discrepancy between the trial and deposition testimony went to the issue of credibility and that the trial testimony should not have been stricken. The Court of Appeals reversed the trial court’s grant of a directed verdict on the informed consent claim and remanded the case for a new trial.

Issue

What was the appropriate standard to be employed in this case where the patient alleges the physician did not provide informed consent?

Finding

The Tennessee Supreme Court held that informed consent cases are better resolved on an objective basis. The standard to be applied in informed consent cases is whether a reasonable person in the patient’s position would have consented to the procedure or treatment in question if adequately informed of all significant perils. The decision of the Court of Appeals was affirmed, and the case was remanded to the trial court for a new trial.

Reason

In Tennessee, the plaintiff in an informed consent medical malpractice case has the burden of proving: (1) what a reasonable medical practitioner in the same or similar community would have disclosed to the patient about the risk posed by the proposed procedure or treatment; and (2) that the defendant departed from the norm.

The issue with which the court was confronted was whether an objective, a subjective, or a hybrid subjective/objective test should be employed when assessing causation in informed consent cases. The majority of jurisdictions in Tennessee having addressed this issue follow an objective standard.

Under the objective analysis, the plaintiff’s testimony is only one factor when determining the issue of informed consent. The issue is not whether Ashe would herself have chosen a different course of treatment—the issue is whether a reasonable patient in Ashe’s position would have chosen a different course of treatment. The jury, therefore, should have been allowed to decide whether a reasonable person in Ashe’s position would have consented to the radiation therapy had the risk of paralysis been disclosed.

13.6 ASSESSING DECISION-MAKING CAPACITY

A patient is considered competent to make medical decisions regarding his or her care unless a court determines otherwise. The clinical assessment of decision-making capacity involves the patient’s ability to:

• Understand the risks, benefits, and alternatives of a proposed test or procedure

• Evaluate the information provided by the physician

• Express his or her treatment preferences

• Voluntarily make decisions regarding his or her treatment plan without undue influence by family, friends, or medical personnel

13.7 ADMISSION CONSENT FORMS

Admission consent forms signed at the time of admission are designed to record the patient’s consent to routine services, general diagnostic procedures, and the everyday routine touchings of the patient. Concerns for their use arise from the potential of unwarranted reliance on them for specific and potentially high-risk procedures or treatments.

13.8 CONSENT FOR SPECIFIC PROCEDURES

There are a variety of consent forms designed to more specifically describe the risks, benefits, and alternatives of particular invasive and noninvasive procedures. Such forms include consent for anesthesia, cardiac catheterization, surgery, radiation therapy, blood and blood by-products, chemotherapy, CT and magnetic resonance imaging (MRI) scans, endoscopy, and colonoscopy.

13.9 LIMITED POWER OF ATTORNEY

A limited power of attorney authorizes, for example, school officials, teachers, and camp counselors to act on a parents’ or legal guardian’s behalf when seeking emergency care for an injured student or camper. Such consent for treatment provides limited protection in the care of a particular child. Temporary consent indicates a parent or guardian’s intent to have a school official, teacher, or counselor to seek emergency treatment when necessary for the child for whom consent is provided.

13.10 WHO MAY CONSENT

Consent of the patient ordinarily is required prior to treatment. However, when the patient is either physically unable or legally incompetent to consent and no emergency exists, consent must be obtained from a person who is empowered to consent on the patient’s behalf. The person who authorizes treatment of another must have sufficient information to make an intelligent judgment on behalf of the patient.

Competent Patients

A competent adult patient’s wishes concerning his or her person may not be disregarded. The court in In re Melideo
21 held that every human being of adult years has a right to determine what shall be done with his or her own body and cannot be subjected to medical treatment without his or her consent. When there is no compelling state interest that justifies overriding an adult patient’s decision, that decision should be respected.

In Fosmire v. Nicoleau,22 the New York Supreme Court, Suffolk County, issued an order authorizing blood transfusions for a patient who had refused them. The plaintiff applied for an order vacating the court’s order. The appeals court held that the patient’s constitutional rights of due process were violated when the trial court issued an order authorizing blood transfusions in the absence of notice or opportunity for the patient or her representatives to be heard. The right of a competent patient to refuse medical treatment, even if premised on fervently held religious beliefs, is not unqualified and may be overridden by compelling state interests. However, a state’s interest in preserving a patient’s life in and of itself may not, under certain circumstances, be sufficient to overcome the patient’s express desire to exercise her religious belief and forgo a blood transfusion. The appellate division held, in part, that the state’s interest would be satisfied if the other parent survived.

The New York Court of Appeals, New York’s highest court, went further by stating that the citizens of the state have long had the right to make their own medical care choices without regard to their medical condition or status as parents. The court of appeals held that a competent adult has both a common law and statutory right under public health law to refuse lifesaving treatment. Citing the state’s authority to compel vaccination to protect the public from the spread of disease, to order treatment for persons who are incapable of making medical decisions, and to prohibit medical procedures that pose a substantial risk to the patient alone, the court of appeals did note that the right to choose is not absolute. However, if there is no compelling state interest to justify overriding a patient’s refusal to consent to a medical procedure because of religious beliefs, states are reluctant to override such a decision.

Guardianship

A guardian is an individual who, by law, is vested with the power and charged with the duty of taking care of a patient by protecting the patient’s rights and managing the patient’s estate. Guardianship is often necessary in those instances in which a patient is incapable of managing or administering his or her private affairs because of physical and/or mental disabilities or because he or she is under the age of majority.

Temporary guardianship can be granted by the courts if it is determined that such is necessary for the well-being of the patient. The court in In re Estate of Dorone
23 granted temporary guardianship. In this case, the physician and administrator petitioned the court on two occasions for authority to administer blood. A 22-year-old male patient brought to the hospital center by helicopter after an automobile accident was diagnosed as suffering from an acute subdural hematoma with a brain contusion. It was determined that the patient would die unless he underwent a cranial operation. The operation required the administration of blood; however, the parents would not consent to the administration because of their religious beliefs. After a hearing by telephone, the court of common pleas appointed the hospital’s administrator as temporary guardian, authorizing him to consent to the performance of blood transfusions during emergency surgery. A more formal hearing did not take place because of the emergency situation that existed. Surgery was required a second time to remove a blood clot, and the court once again granted the administrator authority to authorize administration of blood. The superior court affirmed the orders, and the parents appealed.

The Pennsylvania Supreme Court held that the judge’s failure to obtain direct testimony from the patient’s parents and others concerning the patient’s religious beliefs were not in error when death was likely to result from withholding blood. The judge’s decisions granting guardianship and the authority to consent to the administration of blood were considered absolutely necessary in the light of the facts of this case. Nothing less than a fully conscious decision by the patient himself would have been sufficient to override the evidence of medical necessity in this case.

Parental Consent

Parents generally have the right to authorize medical care for minor children, generally under the age of 18 years. Consent laws for minors often vary from state to state and should be referenced as necessary. Children who are emancipated have a right to make their own medical care decisions. While parents may have a right to refuse medical care in certain instances, such refusal is reportable by the caregiver to the state if such refusal can result in harm to the child.

When a medical or surgical procedure is to be performed on a minor, the question arises as to whether the minor’s consent alone is sufficient and, if not, from whom consent should be obtained. The courts have held, as a general proposition, that the consent of a minor to medical or surgical treatment is ineffective and that the physician must secure the consent of the minor’s parent or someone standing in loco parentis; otherwise, he or she will risk liability. Although parental consent should be obtained before treating a minor, treatment should not be delayed to the detriment of the child. Several courts have held the consent of a minor to be sufficient authorization for treatment in certain situations. In any specific case, a court’s determination that the consent of a minor is effective and that parental consent is unnecessary will depend on such factors as the minor’s age, maturity, mental status, and emancipation and the procedure involved, as well as public policy considerations.

Emancipated Minor

Parental consent is not necessary when the minor is married or otherwise emancipated. Most states have enacted statutes making it valid for married and emancipated minors to provide effective consent. In Carter v. Cangello,24 the California Court of Appeals held that a 17-year-old girl who was living away from home, in the home of a woman who gave her free room and board in exchange for household chores, and who made her own financial decisions legally could consent to medical procedures performed on her. The court made this decision knowing that the girl’s parents provided part of her income by paying for her private schooling and certain medical care. The physician was privileged under statute to act on the minor’s consent to surgery, and such privilege insulated him from liability to the parents for treating their daughter without their consent.

Many states have recognized by legislation that treatment for conditions such as pregnancy, venereal disease, and drug dependency does not require parental consent. State legislatures have reasoned that a minor is not likely to seek medical assistance when parental consent is demanded, and that insisting on parental consent for the treatment of these conditions would increase the likelihood that a minor would delay or go without treatment to avoid explanation to the parents.

The Right to Choose

Abraham Cherrix was 16 years old when he was diagnosed in August 2005 with Hodgkin’s disease. He was treated with chemotherapy. In February of 2006, he learned that chemotherapy had not cured his disease. Doctors recommended a higher dosage of chemotherapy combined with radiation and culminating in stem cell therapy. The treatment program offered Abraham less than a 50% chance of survival. Abraham and his family chose to pursue alternative treatment in Mexico. Cherrix’s oncologist reported the family’s decision to the Accomack County Department of Social Services (ACDSS). Cherrix’s parents were accused of medical neglect by ACDSS. A judge granted the ACDSS temporary joint custody with the Cherrixes. The parents faced charges in the Juvenile and Domestic Court for parental neglect. The family obtained a stay from the Circuit Court.25

The Accomack Virginia Circuit Court Judge cleared Abraham’s parents of all charges of medical neglect and allowed Abraham to pursue alternative treatment under a doctor of the family’s choice. A board-certified oncologist who is experienced in alternative cancer treatment will monitor Abraham. The family will provide the court updates on Abraham’s care every 3 months until he is cured or turns 18. The questions to be asked in this case include: Whose body is it anyway? Did the state go too far? The judge must have thought so.

The judge agreed to allow me to see an oncologist of my choice! My alternative treatments WILL continue. He also ruled that my parents were not guilty of medical neglect, and social services no longer has any jurisdiction over my case! Free, happy, and ready to live, that’s me!26

13.11 INCOMPETENT PATIENTS

When there is doubt as to a patient’s capacity to consent, the consent of the legal guardian or next of kin should be obtained. If there are no relatives to consult, application should be made for a court order that would authorize a proposed procedure. It may be the duty of the court to assume responsibility of guardianship for a patient who is non compos mentis. The most frequently cited conditions indicative of incompetence are mental illness, mental retardation, senility, physical incapacity, and chronic alcohol or drug abuse.

A person who is mentally incompetent cannot legally consent to medical or surgical treatment. Therefore, consent of the patient’s legal guardian must be obtained. When no legal guardian is available, a court that handles such matters must be petitioned to permit treatment. Subject to applicable statutory provisions, when a physician doubts a patient’s capacity to consent, even though the patient has not been judged legally incompetent, the consent of the nearest relative should be obtained. If a patient is conscious and mentally capable of giving consent for treatment, the consent of a relative without the consent of the competent patient would not protect the physician from liability.

SPOUSAL CONSENT

Citation:
Greynolds v. Kurman, 632 N.E.2d 946 (Ohio Ct. App. 1993)

Facts

On July 29, 1987, Mr. Greynolds suffered from a transient ischemic attack (TIA), a sudden loss of neurologic function caused by vascular impairment to the brain. As a result of the TIA, Greynolds had garbled speech and expressive and perceptive aphasia (a medical term used to describe the loss of the power of expression by speech, writing, or signs, or of comprehending spoken or written language). Greynolds was taken to an emergency department, where Dr. Litman met him. At Dr. Litman’s request, Dr. Rafecas, a cardiologist, examined Greynolds. Dr. Rafecas determined that because of Greynold’s past medical history, which included previous TIAs, he was at a high risk for a stroke and sought to pinpoint the exact source of vascular insufficiency to the brain.

On August 3, 1987, after receiving the results of noninvasive tests, Dr. Rafecas ordered a cerebral angiogram. Dr. Kurman performed the angiogram. During the procedure, Greynolds suffered a stroke that left him severely disabled.

Greynolds and his wife filed a medical malpractice action against Dr. Rafecas and Dr. Kurman, asserting that Dr. Rafecas negligently recommended the procedure and that Dr. Kurman performed the procedure without obtaining the informed consent of the patient. Dr. Kurman argued that the trial court erred by refusing to enter judgment for him consistent with the answer to jury question number 3 (Id. at 949):

Question No. 1: Do you find there was a failure to obtain informed consent?

Answer: Yes.

Question No. 2: If you answered Interrogatory No. 1 yes, then state specifically in what manner Dr. Kurman’s care fell below the recognized standards of the medical community.

Answer: Mr. Greynolds was not in our estimation capable of comprehending the consent form. Therefore, Dr. Kurman should have obtained consent from the next-of-kin, specifically, Mrs. Greynolds.

Question No. 3: If you answered yes to interrogatory No. 1 and you found that Mr. Greynolds did not consent to the procedure, do you find that a reasonable person would have consented to the procedure?

Answer: Yes.

Kurman moved the trial court to grant him a judgment notwithstanding the verdict because the jury’s answer to interrogatory question number 3 was not consistent with the jury’s verdict. The trial court overruled Kurman’s motion and entered judgment for the plaintiffs, and Kurman appealed.

Issue

Was there sufficient evidence to support a judgment for the plaintiffs?

Holding

The court of appeals held that the evidence was sufficient to support a judgment in favor of the patient and his wife.

Reason

The jury needed to determine that the risks involved in the cerebral angiogram were not disclosed to Greynolds, that the risks involved in the procedure materialized and caused his stroke, and that a reasonable person in the position of Greynolds would have decided against having the angiogram had the risks associated with the procedure been disclosed to him. The jury concluded that Greynolds did not consent to the angiogram because he “was not … capable of comprehending the consent form,” and further noted that Kurman should have sought consent from the next of kin, specifically, the spouse. Given the evidence of Greynolds’s condition when he signed the consent forms, his past medical history, and the fact that he was at an increased risk to suffer complications during an angiogram, the court found that there was sufficient evidence to support a finding of lack of informed consent.

Discussion

1. What would constitute informed consent?

2. Who should describe the risks associated with a procedure to the patient?

13.12 RIGHT TO REFUSE TREATMENT

… the individual’s right to make decisions vitally affecting his private life according to his own conscience … is difficult to overstate … because it is, without exaggeration, the very bedrock on which this country was founded.

—Wons v. Public Health Trust27

Adult patients who are conscious and mentally competent have the right to refuse medical care to the extent permitted by law, even when the best medical opinion deems it essential to life. If a patient rejects treatment, the hospital should take all reasonable steps to inform the patient of the risks of refusing treatment. Every person has the legal right to refuse to permit a touching of his or her body. Failure to respect this right can result in a legal action for assault and battery. Coercion through threat, duress, or intimidation must be avoided.

A patient’s right to make decisions regarding his own health care is addressed in the Patient Self-Determination Act of 1990.28 The Act provides that each person has a right under state law (whether statutory or as recognized by the courts of the state) to make decisions concerning his or her medical care, including the right to accept or refuse medical or surgical treatment.

A competent patient’s refusal to consent to a medical or surgical procedure must be adhered to, whether the refusal is grounded on lack of confidence in the physician, fear of the procedure, doubt as to the value of a particular procedure, or mere whim. The U.S. Supreme Court stated that the “notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment” and the “logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.”29 The common law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment.

The question of liability for performing a medical or surgical procedure without consent is separate and distinct from any question of negligence or malpractice in performing a procedure. Liability may be imposed for a nonconsensual touching of a patient, even if the procedure improved the patient’s health.

The courts perform a balancing test to determine whether to override a competent adult’s decision to refuse medical treatment. The courts balance state interests, such as preservation of life, protection of third parties, prevention of suicide, and the integrity of the medical profession, against a patient’s rights of bodily integrity and religious freedom. The most frequently used state right to intervene in a patient’s decision-making process is for the protection of third parties. The state of Illinois, in In re Fetus Brown,30 asserted that its interest in the well-being of a viable fetus outweighed the patient’s rights to refuse medical treatment. The state argued that a balancing test should be used to weigh state interests against patient rights. The appellate court held that it could not impose a legal obligation upon a pregnant woman to consent to an invasive medical procedure for the benefit of her viable fetus.

A patient’s refusal to consent to treatment, for any reason, religious or otherwise, should be noted in the medical record, and a release form should be executed (Figure 13-1). The completed release provides documented evidence of a patient’s refusal to consent to a recommended treatment. A release will help protect the organization and physicians from liability should a suit arise as a result of a failure to treat. The best possible care must be rendered to the patient at all times within the limits imposed by the patient’s refusal.

Should a patient refuse to sign the release, documentation of the refusal should be placed on the form, and the form should be included as part of the patient’s permanent medical record. Advice of legal counsel should be sought in those cases where refusal of treatment poses a serious threat to a patient’s health. With the advice of legal counsel, the organization should formulate a policy regarding treatment when consent has been refused. An administrative procedure should be developed to facilitate application for a court order when one is necessary and there is sufficient time to obtain one.

Religious Beliefs

As part of their religious beliefs, Jehovah’s Witnesses generally have refused the administration of blood, even in emergency situations. Case law over the past several decades has developed to a point where any person, regardless of religious beliefs, has the right to refuse medical treatment.

The plaintiff, Bonita Perkins, in Perkins v. Lavin,31 was a Jehovah’s Witness. She gave birth at the defendant-hospital on September 26, 1991, and was discharged 2 or 3 days later. After going home, she began hemorrhaging and returned to the hospital. She specifically informed the defendant’s employees that she was not to be provided any blood or blood derivatives and completed and signed a form to that effect:

I request that no blood or blood derivatives be administered to (plaintiff) during this hospitalization, notwithstanding that such treatment may be deemed necessary in the opinion of the attending physician or his assistants to preserve life or promote recovery. I release the attending physician, his assistants, the hospital and its personnel from any responsibility whatever for any untoward results due to my refusal to permit the use of blood or its derivatives.32

As a result of the plaintiff’s condition, it became necessary to perform an emergency D&C on her. She continued to bleed, and her condition deteriorated dramatically. Her blood count dropped, necessitating administration of blood products as a lifesaving measure. Her husband, who was not a Jehovah’s Witness, consented to a blood transfusion, which was administered. The plaintiff recovered and filed an action against the defendant for assault and battery and intentional infliction of emotional distress. The plaintiff’s claim as to assault and battery was sustained. The claim as to the intentional infliction of emotional distress was overruled.

The plaintiff specifically informed the defendant that she would consider a blood transfusion an offensive contact. The plaintiff submitted sufficient evidence to the trial court to establish that there was, at least, a genuine issue as to whether the defendant intentionally invaded her right to be free from offensive contact. Because of the plaintiff’s recognition that the defendant acted to save her life, a jury may find that she is entitled to only nominal damages.

13.13 EXCULPATORY AGREEMENTS

An exculpatory agreement is an agreement that relieves one from liability when he or she has acted in good faith. Exculpatory agreements in the medical setting are generally considered invalid.

In Cudnik v. William Beaumont Hospital,33 Mr. Cudnik underwent radiation therapy in March and April of 1985 after undergoing surgery for prostate cancer. Before receiving therapy, he signed a consent document that provided in part:

Further, my physician has fully explained to me the possibilities of reactions and the possible side effects of the treatment. I understand that there is no guarantee given to me as to the results of radiation therapy. Understanding all of the foregoing, I hereby release the physicians and staff of the Department of Radiation Oncology and William Beaumont Hospital from all suits, claims, liability, or demands of every kind and character which I or my heirs, executors, administrators [sic] or assigns hereafter can, shall, or may have arising out of my participation in the radiation therapy treatment regimen.34

In early 1989, Cudnik returned to the hospital complaining of back discomfort, whereupon he was diagnosed as suffering from a postradiation ulcer burn at the site where he previously received radiation treatment. An action was brought against the hospital claiming that the negligent administration of radiation therapy contributed to Cudnik’s death. The defendant moved for summary judgment, and the Oakland Circuit Court granted the hospital’s motion after concluding that the exculpatory agreement between the parties precluded the plaintiff’s claims.

The plaintiff appealed, claiming that the hospital should be held vicariously liable for the medical malpractice of its employees or agents. As a general proposition, the parties to a contract may enter into an exculpatory agreement provided that it does not violate the law or contravene public policy. The question in this case is whether the plaintiff’s claim of medical malpractice is precluded by the exculpatory agreement between the two parties.

Exhibit 13-1 Refusal of care and treatment.

The court of appeals held that the exculpatory agreement executed by the patient prior to receiving radiation therapy was invalid and unenforceable to absolve a medical care provider from liability for medical malpractice. The agreement in this case is clearly against public policy. Further, the majority of jurisdictions have held that exculpatory agreements involving patient care are unenforceable.

Some exculpatory agreements in the medical setting are considered valid. For example, experimental procedures may require a different standard because, by their very nature, they require a deviation from generally accepted medical practices. In a case involving the patient’s last hope of survival, the New York Supreme Court held that “the parties may covenant to exempt the physician from liability for those injuries which are found to be the consequences of the nonnegligent, proper performance of the procedure.”35 The Cudnik case does not appear to involve an experimental procedure.

13.14 PROVING LACK OF CONSENT

The burden of establishing proof on a complaint of lack of informed consent is on the plaintiff. The plaintiff must establish that:

1. a reasonably prudent person in the patient’s position would not have undergone the treatment if fully informed, and

2. the lack of informed consent is the proximate cause of the injury or condition for which recovery is sought.

In a lawsuit, testimony would be necessary to establish the extent of the patient’s actual knowledge and understanding of the treatment rendered. It is possible for a patient, after treatment, to claim a lack of advance knowledge about the nature of a physician’s treatment, and it is possible that a jury will believe the patient and impose liability on the physician and/or the organization.

13.15 INFORMED CONSENT CLAIMS AND DEFENSES

Defenses available to defendants who have been sued based on failure to provide their patients with sufficient information to make an informed decision include the following:

1. Risks not disclosed are commonly known and do not warrant disclosure.

2. Patient assured the medical practitioner that he or she would undergo the treatment or procedure regardless of the risk involved, or the patient assured the medical practitioner that he or she did not want to be informed of the matters to which he or she would be entitled to be informed.

3. Consent was not reasonably possible by or on behalf of the patient.

4. The practitioner, after considering all of the attendant facts and circumstances, used reasonable discretion as to the manner and extent as to which alternatives or risks should be disclosed to the patient because the practitioner reasonably believed that the manner and extent of such disclosure could reasonably be expected to adversely and substantially affect the patient’s condition.

A patient’s condition during surgery may be recognized as different from that which had been expected and explained, requiring a different procedure than the one to which the patient initially consented. The surgeon may proceed to treat the new condition; however, the patient must have been aware of the possibility of extending the procedure.

The patient in Winfrey v. Citizens & Southern National Bank
36 brought a suit against the deceased surgeon’s estate, alleging that during exploratory surgery, the surgeon performed a complete hysterectomy without the patient’s consent. The superior court granted summary judgment for the surgeon’s estate, and the patient appealed. The court of appeals held that even though the patient may not have read the consent document, when no legally sufficient excuse appeared, she was bound by the terms of the consent document that she voluntarily executed. The plain wording of the binding consent authorized the surgeon to perform additional or different operations or procedures that he might consider necessary or advisable in the course of the operation. Relevant sections of the consent signed by the patient included the following:37

1. I authorize the performance on (patient’s name) of the following operation/laparoscopy, possible laparotomy…

2. I consent to the performance of operations and procedures in addition to or different from those now contemplated, which the above named doctor or his associates or assistants may consider necessary or advisable in the course of the operation. …

3. I acknowledge that the nature and purpose of the operation, possible alternative methods of treatment, the risks involved, and the possibility of complications have been fully explained to me.

CHAPTER REVIEW

1. Patient consent is an agreement by the patient to allow something proposed by another to be performed on his or her body.

2. Consent can be expressed verbally or in writing. It can be implied by statute or granted by the courts in cases where emergency care is needed to save the life of the patient.

3. Oral consent, although binding, is often difficult to corroborate, whereas written consent provides visible proof of a patient’s wishes.

4. Implied consent is generally presumed when immediate action is required to prevent death or permanent impairment of a patient’s health. In such cases, documentation justifying the need to treat before obtaining consent should be maintained.

5. Statutory consent provides that when a patient is clinically unable to give consent to a lifesaving emergency treatment, the law implies consent on the presumption that a reasonable person would consent to lifesaving medical intervention.

6. Judicial consent may be necessary in those instances where there is concern as to the absence or legality of consent. 7. Informed consent is a legal concept that provides that a patient has a right to know the potential risks, benefits, and alternatives of a proposed procedure.

8. Validity of consent

• Subjective standard: informed consent is determined by patient testimony.

• Objective standard resolves the issue of informed consent in terms of what a reasonably prudent person in the patient’s position would have decided if suitably informed of the risks, benefits, and alternatives of the procedure.

9. Liability for performing a medical or surgical procedure without consent is distinct from a question of negligence or malpractice in performing the procedure.

• A physician can be found liable for imposing nonconsensual treatment, even if that treatment improved the patient’s health.

10. Consent of a minor:

• Not generally valid to proceed with medical or surgical treatment.

• Not generally required if the minor is married or otherwise emancipated.

11. Consent for incompetent patients, assuming there is no designated family member or surrogate decision maker, can be obtained through application to a court for an order designating a decision maker to make the patient’s healthcare decisions.

12. Regardless of religious beliefs, patients have the right to refuse medical treatment.

• If a patient refuses treatment:

• the refusal should be noted in the patient’s medical record, and

• a release form should be executed that protects the provider from liability should the patient’s refusal to accept care result in injury.

13. An exculpatory agreement is an agreement that relieves one from liability when he or she has acted in good faith. However, these are generally considered invalid in the medical setting.

14. Defenses to claims that informed consent was lacking include:

• Risk not disclosed is commonly known and does not warrant disclosure.

• Patient stated he would undergo the procedure regardless of the risk involved

• Consent was not reasonably possible by or on behalf of the patient.

• The practitioner, after considering all of the attendant facts and circumstances, used reasonable discretion as to the manner and extent as to which alternatives or risks should be disclosed.

Healthcare Ethics

Ethics is nothing else than the reverence for life.

—Albert Schweitzer

Learning Objectives

The reader, upon completion of this chapter, will be able to:

• Describe the concepts of ethics and morality.

• Describe how an understanding of ethical theories, principles, virtues, and values are helpful in resolving ethical dilemmas.

• Explain the relationship between spirituality and religion.

• Discuss situational ethics and how one’s moral character can change as circumstances change.

• Explain how one’s reasoning skills influence the decision-making process.

• Discuss the purpose of an ethics committee and its consultative role in the delivery of patient care.

This chapter provides the reader with an overview of healthcare ethics and moral principles. Ethics and morals are derivatives from the Greek and Latin terms (roots) for custom. The intent here is not to burden the reader with the philosophical arguments surrounding ethical theories, moral principles, virtues, and values; however, as with the study of any new subject, “words are the tools of thought.” Therefore, some new vocabulary is presented to the reader in order to lay a foundation for applying the abstract theories and principles of ethics and making practical use of them.

An ethical dilemma arises in situations where a choice must be made among unpleasant alternatives. It can occur whenever a choice involves giving up something good and suffering something bad, no matter what course of action is taken. Ethical dilemmas often require caregivers to make decisions that may break some ethical norm or contradict some ethical value. For example, should I choose life knowing that an unborn child will be born with severe disabilities, or should I choose abortion and thus prevent pain for both parent and child? Should I adhere to my spouse’s wishes not to be placed on a respirator, or should I choose life over death, disregarding her wishes and right to self-determination? How should I allocate scarce financial resources when there is such a wide range of demands for building projects, expanded patient care programs, equipment, staff, and numerous other budget items in competition for limited dollars?

3.1 ETHICS

How we perceive right and wrong is influenced by what we feed on.

—Author Unknown

Ethics is the branch of philosophy that seeks to understand the nature, purpose, justification, and the founding principles of moral rules and the systems they comprise. Ethics deals with values relating to human conduct. It focuses on the rightness and wrongness of actions, as well as the goodness and badness of motives and ends. Ethics seeks to understand and to determine how human actions can be judged as right or wrong. Ethical judgments can be made based on our own experiences or based on the nature of our principles of reason.

Ethics encompasses the decision-making process of determining the ultimate actions: What should I do, and is it the right thing to do? It involves how individuals decide to live, how they exist in harmony with the environment, and how they live with each other when so few have so much and so many have so little.

Ethics is also referred to as a moral philosophy, the discipline concerned with what is morally good or bad, right or wrong. The term is also applied to any theoretical system of moral values or principles. Ethics is less concerned with factual knowledge than with virtues and values—namely, human conduct, as it ought to be, as opposed to what it actually is.

Microethics involves an individual’s view of what is right and wrong based on personal life experiences.

Macroethics involves a more global view of right and wrong.

Because no person lives in a vacuum, solving ethical dilemmas involves consideration of ethical issues from both a micro- and macroethical perspective.

The term ethics is used in three different, but related, ways, signifying (1) philosophical ethics, which involves inquiry about ways of life and rules of conduct; (2) a general pattern or “way of life,” such as religious ethics (e.g., Judaeo-Christian ethics); and (3) a set of rules of conduct or “moral code,” which involves professional ethics and unethical behavior.

The scope of healthcare ethics encompasses numerous issues, including the right to choose or refuse treatment and the right to limit the suffering one will endure. Incredible advances in technology and the resulting capability to extend life beyond the point of what some may consider a reasonable quality of life have complicated the process of healthcare decision making. The scope of healthcare ethics is not limited to philosophical issues but embraces economic, medical, political, and legal dilemmas.

Bioethics addresses such difficult issues as the nature of life, the nature of death, what sort of life is worth living, what constitutes murder, how we should treat people who are especially vulnerable, and the responsibilities that we have to other human beings. It is about making the right judgments in difficult situations.

We study ethics to assist us in making sound judgments, good decisions, and right choices—or if not right choices, at least better choices. To those in the healthcare industry, ethics is about anticipating and recognizing healthcare dilemmas and making good judgments and decisions based on the patient’s needs and wishes and the universal values that work in unison with the laws of the land, our Constitution; where the Constitution remains silent, we rely on the ability of caregivers to make the right choices using the wisdom of Solomon to “do good.”

3.2 MORALITY

Aim above morality. Be not simply good; be good for something.

—Henry David Thoreau

Morality is a code of conduct. It is a guide to behavior that all rational persons put forward for governing their behavior. Morality describes a class of rules held by society to govern the conduct of its individual members. A moral dilemma occurs when moral ideas of right and wrong conflict.

Morals are ideas about what is right and what is wrong; for example, killing is wrong, whereas healing is right, and causing pain is wrong, whereas easing pain is right. Morals are deeply ingrained in culture and religion and are often part of their identities. Morals should not be confused with cultural habits or customs, such as wearing a certain style of clothing.

Moral judgments are those judgments concerned with what an individual or group believes to be the right or proper behavior in a given situation. They involve assessing another person’s moral character based on how he or she conforms to the moral convictions established by the individual and/or group. What is considered right varies from nation to nation, culture to culture, religion to religion, and one person to the next. In other words, there is no universal morality that is recognized by all people in all cultures at all times.

A code of conduct generally prescribes standards of conduct, states principles expressing responsibilities, and defines the rules expressing duties of professionals to whom they apply. Most members of a profession subscribe to certain “values” and moral standards written into a formal document called a code of ethics. Codes of conduct often require interpretation by caregivers as they apply to the specific circumstances surrounding each dilemma.

Michael D. Bayles, a famous author and teacher, describes the distinction among standards, principles, and rules:

• Standards (e.g., honesty, respect for others, conscientiousness) are used to guide human conduct by stating desirable traits to be exhibited and undesirable ones (dishonesty, deceitfulness, self-interest) to be avoided.

• Principles describe responsibilities that do not specify what the required conduct should be. Professionals need to make a judgment about what is desirable in a particular situation based on accepted principles.

• Rules specify specific conduct; they do not allow for individual professional judgment.

Morality Legislated

When it is important that disagreements be settled, morality is often legislated. Law is distinguished from morality by having explicit rules and penalties and officials who interpret the laws and apply penalties when laws are broken. There is often considerable overlap in the conduct governed by morality and that governed by law. Laws are created to set boundaries for societal behavior. They are enforced to ensure that the expected behavior happens.1

Moral Dilemmas

Moral dilemmas arise when values, rights, duties, and loyalties conflict and, consequently, not everyone is satisfied with a particular decision. An understanding of the concepts presented here will help the caregiver in conflict resolution when addressing ethical dilemmas. Caregivers often find that there seems to be no right or wrong answer. The best answer when attempting to resolve an ethical dilemma is based on the wishes known and the information available at the time a decision must be made. The answer to a dilemma is often illusive.

3.3 ETHICAL THEORIES

Ethics, too, are nothing but reverence for life. This is what gives me the fundamental principle of morality, namely, that good consists in maintaining, promoting, and enhancing life, and that destroying, injuring, and limiting life are evil.

—Albert Schweitzer

Theories and principles of ethics introduce order into the way people think about life. They are the foundations of ethical analysis and provide guidance in the decision-making process. The various theories present differing viewpoints that assist caregivers in making difficult decisions that impact the lives of others. Ethical theories help caregivers to predict the outcome of alternative choices, when following their duties to others, in order to reach an ethically correct decision.

Normative Ethics

Normative ethics is the attempt to determine what moral standards should be followed so that human behavior and conduct may be morally right. Normative ethics is primarily concerned with establishing standards or norms for conduct and is commonly associated with general theories about how one ought to live. One of the central questions of modern normative ethics is whether human actions are to be judged right or wrong solely according to their consequences.

The determination of a universal moral principle for all humanity is a formidable task and most likely not feasible due to the diversity of people and cultures. However, there is a need to have a commonly held consensus as to right and wrong to avoid chaos. Thus, there are generally accepted moral standards around which laws are drafted.

General normative ethics is the critical study of major moral precepts concerning such matters as what things are right, what things are good, and what things are genuine. General normative ethics is the determination of correct moral principles for all autonomous rational beings. Applied ethics is the application of normative theories to practical moral problems. It attempts to explain and justify specific moral problems such as abortion, euthanasia, and assisted suicide.

Descriptive ethics, also known as comparative ethics, deals with what people believe to be right and wrong, whereas normative ethics prescribes how people ought to act.

Meta-ethics seeks to understand ethical terms and theories and their application.

Consequential and Teleological Ethics

The consequential theory of ethics emphasizes that the morally right action is whatever action leads to the maximum balance of good over evil. From a contemporary standpoint, theories that judge actions by their consequences have been referred to as consequential ethics. Consequential ethical theories revolve around the premise that the rightness or wrongness of an action depends on the consequences or effects of an action. The theory of consequential ethics is based on the view that the value of an action derives solely from the value of its consequences. The goal of a consequentialist is to achieve the greatest good for the greatest number. It involves asking the following questions:

• What will be the effects of each course of action?

• Will the effects be positive or negative?

• Who will benefit?

• What action will cause the least harm?

Situational Ethics

Situational ethics is concerned with the outcome or consequences of an action in which the ends can justify the means. Why do good people behave differently in similar situations? Why do good people sometimes do bad things? The answer is fairly simple: One’s moral character can sometimes change as circumstances change—thus the term situational ethics.

Why good people do bad things became a reality for Eddie Adams. He was the photojournalist who had photographed the event described in the news clipping below during the Vietnam War for which he received the Pulitzer Prize. Mr. Adams regrets taking the photo because he believed it sent the wrong message as to what the picture alone depicts.

A person, therefore, may contradict what he believes is the right thing to do and do what is wrong. The values held ever so strongly in one situation may conflict with the same values given a different set of facts. For example, if your plane crashed high in the Andes mountains and the only source of food for survival would be the flesh of those who did not survive, you may, if you wish to survive, have to give up your belief that it is morally wrong to eat the flesh of another human being. Given a different set of circumstances, given an abundance of food, you would most likely find it reprehensible to eat human flesh. Thus, there are no effective hard and fast rules or guidelines to govern ethical behavior.

Viet Cong Execution

“And out of nowhere came this guy who we didn’t know.” Gen. Nguyen Ngoc Loan, chief of South Viet Nam’s national police, walked up and shot the prisoner in the head. His reason: The prisoner, a Viet Cong lieutenant, had just murdered a South Vietnamese colonel, his wife, and their six children.

The peace movement adopted the photo as a symbol of the war’s brutality. But Adams, who stayed in touch with Loan, said the photo wrongly stereotyped the man. “If you’re this general and you caught this guy after he killed some of your people … how do you know you wouldn’t have pulled that trigger yourself? You have to put yourself in that situation…. It’s a war.”

—1969 Spot News, Newseum, Washington, DC

As applied to healthcare decision making, each situation may have a different fact pattern, thus resulting in moral decisions being made on a case-by-case basis. For example, a decision not to use extraordinary means to sustain the life of an unknown 84-year-old may result in a different decision if the 84-year-old is one’s mother. To better understand this concept, consider the desire to live, and the extreme measures one will take in order to do so. Remember that ethical decision making is the process of determining the right thing to do in the event of a moral dilemma.

Utilitarian Ethics

Happiness often sneaks in a door you did not think was open.

—John Barrymore

The utilitarian ethics approach involves the concept that the moral worth of an action is solely determined by its contribution to overall usefulness. It describes doing the greatest good for the most people. It is thus a form of consequential ethics, meaning that the moral worth of an action is determined by its outcome, and thus, the ends justify the means. The utilitarian commonly holds that the proper course of an action is one that maximizes utility, commonly defined as maximizing happiness and reducing suffering.

Deontologic Ethics

Act in such a way that you always treat humanity, whether in your own person or in the person of any other, never simply as a means, but always at the same time as an end.

—Immanuel Kant

Deontologic ethics is commonly attributed to the German philosopher Immanuel Kant (1724–1804). Kant believed that although doing the right thing is good, it might not always lead to or increase the good and right thing sought after. It focuses on one’s duties to others and others’ rights. It includes telling the truth and keeping your promises. Deontologic ethics is often referred to as duty-based ethics. It involves ethical analysis according to a moral code or rules, either religious or secular. Deontology is derived from the Greek word meaning “duty.” Kant’s theory differs from consequentialism in that consequences are not the determinant of what is right; therefore, doing the right thing may not always lead to an increase in what is good.

Duty-based approaches are heavy on obligation, in the sense that a person who follows this ethical paradigm believes that the highest virtue comes from doing what you are supposed to do—either because you have to, e.g., following the law, or because you agreed to, e.g., following an employer’s policies. It matters little whether the act leads to good consequences; what matters is “doing your duty.”2

Nonconsequential Ethics

The nonconsequential theory of ethics denies that the consequences of an action or rule are the only criteria for determining the morality of an action or rule. In this theory, the rightness or wrongness of an action is based on properties intrinsic to the action, not on its consequences. In other words, the nonconsequentialist believes right or wrong depends on the intention, not the outcome.

Ethical Relativism

“Ethical relativism is the theory that holds that morality is relative to the norms of one’s culture. That is, whether an action is right or wrong depends on the moral norms of the society in which it is practiced. The same action may be morally right in one society but be morally wrong in another.”3 What is acceptable in one society may not be considered as acceptable in another society. Slavery may be considered an acceptable practice in one society and unacceptable and unconscionable in another. The administration of blood may be acceptable as to one’s religious beliefs and not acceptable to another within the same society. The legal rights of patients vary from state to state, as is well borne out, for example, by Oregon’s Death with Dignity Act. Caregivers must be aware of cultural, religious, and legal issues that can affect the boundaries of what is acceptable and what is unacceptable practice, especially when delivering health care to persons with beliefs different from their own. As the various cultures merge together in common communities, the education and training of caregivers become more complex.

3.4 PRINCIPLES OF HEALTHCARE ETHICS

You cannot by tying an opinion to a man’s tongue, make him the representative of that opinion; and at the close of any battle for principles, his name will be found neither among the dead, nor the wounded, but the missing.

—E.P. Whipple4 (1819–1886)

Ethical principles are universal rules of conduct, derived from ethical theories that provide a practical basis for identifying what kinds of actions, intentions, and motives are valued. Ethical principles assist caregivers in making choices based on moral principles that have been identified as standards considered important when addressing ethical dilemmas. Ethical principles provide a framework within which particular ethical dilemmas can be analyzed and decisions made. As noted by the principles discussed in the following sections, caregivers, in the study of ethics, will find that difficult decisions often involve choices between conflicting ethical principles.

Autonomy

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestioned authority of law.

—Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891)

The principle of autonomy involves recognizing the right of a person to make one’s own decisions. Auto comes from a Greek word meaning “self” or the “individual.” In this context, autonomy means recognizing an individual’s right to make his or her own decisions about what is best for him or herself. Autonomy is not an absolute principle, meaning that the autonomous actions of one person must not infringe upon the rights of another.

Respect for autonomy has been recognized in the Fourteenth Amendment to the Constitution of the United States. The law upholds an individual’s right to make his or her own decisions about health care. A patient has the right to refuse to receive health care even if it is beneficial to saving his or her life. Patients can refuse treatment, refuse to take medications, refuse blood or blood by-products, and refuse invasive procedures regardless of the benefits that may be derived from them. They have a right to have their decisions followed by family members who may disagree simply because they are unable to “let go.”

Autonomous decision making can be affected by one’s disabilities, mental status, maturity, or incapacity to make decisions. Although the principle of autonomy may be inapplicable in certain cases, one’s autonomous wishes may be carried out through an advance directive and/or an appointed healthcare agent in the event of one’s inability to make decisions.

Beneficence

Beneficence describes the principle of doing good, demonstrating kindness, showing compassion, and helping others. In the healthcare setting, caregivers demonstrate beneficence by balancing benefits against risks. Doing good requires knowledge of the beliefs, culture, values, and preferences of the patient—what one person may believe to be good for a patient may be harmful. For example, a caregiver may decide that a patient should be told frankly, “There is nothing else that I can do for you.” This could be injurious to the patient if the patient really wants encouragement and information about care options from the caregiver. Compassion here requires the caregiver to explain to the patient, “I am not aware of new treatments for your illness; however, I have some ideas about how I can help treat your symptoms and make you more comfortable. In addition, I will keep you informed as to any significant research that may be helpful in treating your disease processes.”

Paternalism

Paternalism is a form of beneficence. People, believing that they know what is best for another, often make decisions that they believe are in that person’s best interest. It may involve, for example, withholding information from someone, believing that the person would be better off that way. Paternalism can occur as a result of one’s age, cognitive ability, and level of dependency. A patient’s right to self-determination is compromised when a third party imposes their wishes against those of the patient.

Paul Ramsey in The Patient as Person (1970) discusses the question of paternalism. As physicians are faced with many options for saving lives, transplanting organs, and furthering research, they also must wrestle with new and troubling choices—for example, who should receive scarce resources (e.g., organ transplants), determining when life ends, and what limits should be placed on care for the dying.

Medical Paternalism

Medical paternalism often involves making choices for patients who are capable of making their own choices. Physicians by the nature of their work are in situations where they can influence a patient’s healthcare decision simply by selectively telling the patient what he or she prefers based on personal beliefs. This directly violates patient autonomy. The problem of paternalism involves a conflict between principles of autonomy and beneficence, each of which is conceived by different parties as the overriding principle in cases of conflict.

Nonmaleficence

Nonmaleficence is an ethical principle that requires caregivers to avoid causing patients harm. It derives from the ancient maxim primum non nocere, translated from the Latin, “first, do no harm.” Physicians today still swear by the code of Hippocrates, pledging to do no harm. Medical ethics require healthcare providers to “first, do no harm.” A New Jersey court, in In re Conroy,5 found that “the physician’s primary obligation is … First do no harm.” If there is no cure for a patient’s disease, the caregiver is often faced with a reoccurring dilemma. Do I tell the patient he is terminal and possibly cause serious psychological harm, or do I do my best to give the patient hope?

The principle of nonmaleficence is shattered when a physician is placed in the position of ending life by removing respirators, giving lethal injections, or by writing prescriptions for lethal doses of medication. Helping patients die violates the physician’s duty to save lives. Allowing death to follow its natural course can help solve the dilemma. In this instance, the patient’s caregivers can help ease the transition from life to death by providing comfort care and addressing the patient’s spiritual needs. For those who believe in an afterlife of peace and happiness, the transition will more likely be easier when one accepts that the patient is leaving one life to an even better life.

Tuskegee Syphilis Experiment

The Tuskegee syphilis experiment, conducted by the U.S. Public Health Service between 1932 and 1972, was designed to analyze the natural progression of untreated syphilis in African American men. The participants were not warned during the study that penicillin was available for the cure for syphilis. They believed that they were receiving adequate care and unknowingly suffered unnecessarily. The Tuskegee syphilis study used disadvantaged, rural black men to investigate the untreated course of the disease, one that is by no means confined to that population. The study should have been recognized from the beginning that selection of research subjects, regardless of race, must be closely monitored to ensure that specific classes of individuals (e.g., terminally ill patients, welfare patients, racial and ethnic minorities, or persons confined to institutions) are not selected for research studies based on their availability, compromised position, or manipulability. Rather, they must be selected for reasons directly related to the research being conducted. The ethical principle of nonmaleficence requires all people to avoid causing harm. In this case the failure to alert those involved in the research study that a cure was available was both ethically and legally wrong.

National Research Act of 1974

Because of publicity from the Tuskegee Syphilis Study, the National Research Act (NRA) of 1974 was passed. The NRA created the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research.6 One of the commission’s charges was to identify the basic ethical principles that should underlie the conduct of biomedical and behavioral research involving human subjects and to develop guidelines to ensure that such research is conducted in accordance with those principles.7 The commission was directed to consider the following:8

1. the boundaries between biomedical and behavioral research and the accepted and routine practice of medicine,

2. the role of assessment of risk–benefit criteria in the determination of the appropriateness of research involving human subjects,

3. appropriate guidelines for the selection of human subjects for participation in such research, and

4. the nature and definition of informed consent in various research settings.

Justice

Justice is the obligation to be fair in the distribution of benefits and risks. Justice demands that persons in similar circumstances be treated similarly. A person is treated justly when he or she receives what is due, is deserved, or can legitimately be claimed. Justice involves how people are treated when their interests compete with one another.

Distributive justice is a principle requiring that all persons be treated equally and fairly. No one person, for example, should get a disproportional share of society’s resources or benefits. There are many ethical issues involved in the rationing of health care. This is often a result of limited or scarce resources, limited access as a result of geographic remoteness, or a patient’s inability to pay for services combined with many physicians who are unwilling to accept patients who are perceived as “no pays” with high risks for legal suits.

Senator Edward M. Kennedy, speaking on health care at the John F. Kennedy Presidential Library in Boston, Massachusetts, on April 28, 2002, stated:

It will be no surprise to this audience that I believe securing quality, affordable health insurance for every American is a matter of simple justice. Health care is not just another commodity. Good health is not a gift to be rationed based on ability to pay. The time is long overdue for America to join the rest of the industrialized world in recognizing this fundamental need.

Senator Kennedy, speaking at the Democratic National Convention on August 25, 2008, later said:

And this is the cause of my life—new hope that we will break the old gridlock and guarantee that every American North, South, East, West, young, old, will have decent quality health care as a fundamental right and not a privilege.

Although Senator Edward Kennedy did not live to see the day his dream would come true, President Barack Obama signed into law the final piece of his administration’s historic highly controversial healthcare bill on March 23, 2010, a bill that continues to be challenged in various courts and plays a troublesome role between political parties and their constituencies.

3.5 VIRTUE ETHICS AND VALUES

The most important human endeavor is the striving for morality in our actions. Our inner balance, and even our very existence depends on it. Only morality in our actions can give beauty and dignity to our lives.

—Albert Einstein

Virtue ethics focuses on the inherent character of a person rather than on the specific actions that he or she performs. A virtue is normally defined as some sort of moral excellence or beneficial quality. In traditional ethics, virtues are those characteristics that differentiate good people from bad people. Virtues, such as honesty and justice, are abstract moral principles. A morally virtuous person is one who does the good and right thing by habit, not by a set of rules of conduct. In other words, the character of a virtuous person is naturally good, as exhibited by his or her unswerving good behavior and actions.

Virtue-based ethical theories place much less emphasis on which rules people should follow and instead focus on helping people develop good character traits, such as kindness and generosity. These character traits will, in turn, allow a person to make the correct decisions later on in life. Virtue theorists also emphasize the need for people to learn how to break bad habits of character, such as greed or anger.9

Properly understood, virtues serve as indispensable guides to our actions; however, they are not ends in themselves. Virtues are merely abstract means to concrete ends. The ends are values—the things in life that we aim to gain and keep. Many individuals have a tendency to focus on values and not virtues. Simply stated, most individuals find it difficult to make the connection between abstract principles (virtues) and what has value. The relationship between means and ends and principles (virtues) and practice (values) is often difficult to grasp.

A moral value is the relative worth placed on some virtuous behavior. What has value to one person may not have value to another. A value is a standard of conduct. Values are used for judging the goodness or badness actions. Ethical values imply standards of worth. They are the standards by which we measure the goodness in our lives. Intrinsic value is something that has value in and of itself (e.g., happiness). Instrumental value is something that helps to give value to something else (e.g., money is valuable for what it can buy).

Values may change as needs change. If one’s basic needs for food, water, clothing, and housing have not been met, one’s values may change such that a friendship, for example, might be sacrificed if one’s basic needs can be better met as a result of the sacrifice. If mom’s estate is being squandered at the end of her life, the financially well-off family member may want to take more aggressive measures to keep mom alive despite the financial drain on her estate. Another family member, who is struggling financially, may more readily see the futility of expensive medical care and find it easier to let go. Values give purpose to each life. They make up one’s moral character.

All people make value judgments and make choices among alternatives. Values are the motivating power of a person’s actions and necessary to survival, both psychologically and physically.

We begin our discussion here with an overview of those virtues commonly accepted as having value when addressing difficult healthcare dilemmas. The reader should not get overly caught up in the philosophical morass of how virtues and values differ, but should be aware that virtues and values have been used interchangeably.

Whether we call compassion, for example, a virtue or a value or both, the importance for our purposes in this text is to understand what compassion is and how it is applied in the healthcare setting.

Pillars of Moral Strength

I am part of all I have met.

—Alfred Tennyson

There is a deluge of ethical issues in every aspect of human existence. Although cultural differences, politics, and religion influence who we are, it is all of life’s experiences that affect who we become. If we have courage to do right, those who have influenced our lives were most likely courageous. If we are compassionate, it is most likely because we have been influenced by the compassionate.

Figure 3-1 Pillars of moral strength.

The Pillars of Moral Strength illustrated in Figure 3-1 describes a virtuous person. What is it that sets each person apart? In the final analysis, it is one’s virtues and values that build moral character. Look beyond the words and ask, “Do I know their meanings?” “Do I apply their concepts?” “Do I know their value?” “Are they part of me?”

This book is not about memorizing words; it is about applying what we learn for the good of all whose lives we touch. We begin our discussion here with an overview of those virtues commonly accepted as having value when addressing difficult healthcare dilemmas.

Courage as a Virtue

Courage is the greatest of all virtues, because if you haven’t courage, you may not have an opportunity to use any of the others.

—Samuel Johnson

Courage is the mental or moral strength to persevere and withstand danger. “Courage is the ladder on which all the other virtues mount.”10 It is the strength of character necessary to continue in the face of fears and the challenges in life. It involves balancing fear, self-confidence, and values. Without courage, we are unable to take the risks necessary to achieve the things most valued. A courageous person has good judgment and a clear sense of his or her strengths, correctly evaluates danger, and perseveres until a decision is made and the right goal that is being sought has been achieved.

Courage, in differing degrees, helps to define one’s character (the essence of one’s being) and offers the strength to stand up for what is good and right. It crosses over and unites and affects all other values. Courage must not be exercised to an extreme, causing a person to become so foolish that his or her actions are later regretted.

When the passion to destroy another human being becomes such an obsession that one is willing to sacrifice the lives of others, that person has become a bully and a coward and not a person of courage. History is filled with those men and women who have hidden their fears by inciting others to do evil. Such people are not the models of character that we wish to instill thoughts of in the minds of our children.

Wisdom as a Virtue

You can’t inherit wisdom, You can’t be taught wisdom. You cannot learn wisdom. Wisdom is a God given gift that often comes with age.

—Gp

My Journey–How Lucky Am I?

No words can be scripted to say what I have been through, so I will just speak from my heart and off the cuff. From the day the Dr. said to me, “Denise, you have a rare cancer and we are sorry there is nothing we can do,” I did not waver in my faith in God. He was in me, he was thru me and he was around me. I just asked the Dr., “What Do I Do?” And yet, although he said a whole bunch of words, I wasn’t focused so much on what was being said. It’s like a calmness was over me, not much worry, just a feeling of I will never be ALONE on this new journey I’m about to experience. I felt calm. Not until I looked at my loved ones’ FACES did I realize, oh my, this can be bad. But again, a feeling came over me that I will not face this ALONE. God has plans for me and I will surrender in his grace and as time passed, I realized how lucky and blessed I am, for most people who may feel that death may be close by, I didn’t feel that way. What I felt was WOW!! Everyone gets to show me their love in the NOW and not in the later when I am no longer HERE. How lucky am I.

—Denise

Wisdom is the judicious application of knowledge. Wisdom begins first by learning from the failures and successes of those who have preceded us. Marcus Tullius Cicero (106–43 BC), a Roman philosopher and politician, is reported to have said, “The function of wisdom is to discriminate between good and evil.” In the healthcare setting, when the patient’s wishes and end of life preferences are unknown, wisdom with good judgment without bias or prejudice springs forth more easily. As Gerda Lerner, an American author, historian, and teacher, so profoundly said:

We can learn from history how past generations thought and acted, how they responded to the demands of their time and how they solved their problems. We can learn by analogy, not by example, for our circumstances will always be different than theirs were. The main thing history can teach us is that human actions have consequences and that certain choices, once made, cannot be undone. They foreclose the possibility of making other choices and thus they determine future events.11

Wisdom often comes with age, therefore, “Count your age by friends, count your life by smiles.”12

Temperance as a Virtue

Being forced to work, and forced to do your best, will breed in your temperance and self-control, diligence and strength of will, cheerfulness and content, and a hundred virtues which the idle will never know.

—Charles Kingsley13

Temperance involves self-control and restraint. It embraces moderation in thoughts and actions. Temperance is evidenced by orderliness and moderation in everything one says and does. It involves the ability to control one’s actions so as not to go to extremes. The question arises, without the ability to control oneself from substance abuse, for example, how can a person possibly live the life of a virtuous person? The old adage, “the proof is in the pudding,” lies in one’s actions. A virtuous person stands out from the crowd by actions and deeds.

Commitment

I know the price of success: dedication, hard work, and an unremitting devotion to the things you want to see happen.

—Frank Lloyd Wright

Commitment is the act of binding oneself (intellectually or emotionally) to a course of action. It is an agreement or pledge to do something. It can be ongoing or a pledge to do something in the future.

Compassion

Compassion is the basis of morality.

—Arnold Schopenhauer

Compassion is the deep awareness of and sympathy for another’s suffering. The ability to show compassion is a true mark of moral character. Compassion is a moral value expected of all caregivers. Those who lack compassion have a weakness in their moral character. Dr. Linda Peeno showed her compassion as she testified before the Committee on Commerce on May 30, 1996. She stated that she had been hired as a claims reviewer for several health maintenance organizations (HMOs). Here is her story in part:

I wish to begin by making a public confession. In the spring of 1987, I caused the death of a man. Although this was known to many people, I have not been taken before any court of law or called to account for this in any professional or public forum. In fact, just the opposite occurred. I was rewarded for this. It brought me an improved reputation in my job and contributed to my advancement afterwards. Not only did I demonstrate that I could do what was asked, expected of me, I exemplified the good company employee. I saved a half a million dollars.

Since that day, I have lived with this act and many others eating into my heart and soul. The primary ethical norm is do no harm. I did worse, I caused death. Instead of using a clumsy bloody weapon, I used the simplest, cleanest of tools: my words. This man died because I denied him a necessary operation to save his heart. I felt little pain or remorse at the time. The man’s faceless distance soothed my conscience. Like a skilled soldier, I was trained for the moment. When any moral qualms arose, I was to remember, “I am not denying care; I am only denying payment.”14

Duty-based ethics required Dr. Peeno to follow the rules of her job. In so doing, a life was lost. Although Dr. Peeno came forward with her story, the lack of compassion for others plagues the healthcare industry in a variety of settings.

Never apologize for showing feeling. When you do so, you apologize for the truth.

—Benjamin Disraeli

Detachment

Detachment, or lack of concern for a patient’s needs, is what often translates into mistakes that can result in patient injuries. Those who have excessive emotional involvement in a patient’s care may be best suited to work in those settings where patients are most likely to recover and have positive outcomes (e.g., maternity wards). As with all things in life, there needs to be a comfortable balance between compassion and detachment. Caregivers need to show the same compassion for others as they would expect for themselves or their loved ones.

What Went Wrong?

The son of a prominent Boston doctor … was on his way to becoming a leading surgeon in his own right when a bizarre blunder interrupted his climb: he left his patient on the operating table so he could cash his paycheck. A series of arrests followed exposing a life of arrogance, betrayal, and wasted promise.

—Neil Swidey, “What Went Wrong,” The Boston Globe, March 21, 2004

Conscientiousness

The most infectiously joyous men and women are those who forget themselves in thinking about and serving others.

—Robert J. McCracken

Teaching Doctors to Care

At Harvard and other medical schools across the country, educators are beginning to realize that empathy is as valuable to a doctor as any clinical skill…. [D]octors who try to understand their patients may be the best antidote for the wide-spread dissatisfaction with today’s health care system.

—Nathan Thornburgh, “Teaching Doctors to Care,” Time Magazine, March 29, 2006

A conscientious person is one who has moral integrity and a strict regard for doing what is considered the right thing to do. Conscience is a form of self-reflection on and judgment about whether one’s actions are right or wrong, good or bad. It is an internal sanction that comes into play through critical reflection. This sanction often appears as a bad conscience in the form of painful feelings of remorse, guilt, shame, disunity, or disharmony as the individual recognizes that his or her acts were wrong. Although a person may conscientiously object and/or refuse to participate in some action (e.g., abortion), that person must not obstruct others from performing the same act if the others have no moral objection to it.

Discernment

Get to know two things about a man. How he earns his money and how he spends it. You will then have the clue to his character. You will have a searchlight that shows up the innermost recesses of his soul. You know all you need to know about his standards, his motives, his driving desires, and his real religion.

—Robert J. McCracken

Discernment is the ability to make a good decision without personal biases, fears, and undue influences from others. A person who has discernment has the wisdom to decide the best course of action when there are many possible actions from which to choose.

Fairness

Do all the good you can, By all the means you can, In all the ways you can, In all the places you can, At all the times you can, To all the people you can, As long as you ever can.

—John Wesley15

In ethics, fairness requires each person to be objective, unbiased, dispassionate, impartial, and consistent with the principles of ethics. Fairness is the ability to make judgments free from discrimination, dishonesty, or one’s own bias. It is the ability to be objective without prejudice or bias. We often tolerate mediocrity. We sometimes forget to thank those who just do their jobs, and we often praise the extraordinary, sometimes despite questionable faults. To be fair, it is important to see the good in all and to reward that good.

Fidelity

Nothing is more noble, nothing more venerable, than fidelity. Faithfulness and truth are the most sacred excellences and endowments of the human mind.

—Cicero

Fidelity is the virtue of faithfulness, being true to our commitments and obligations to others. A component of fidelity, veracity, implies that we will be truthful and honest in all our endeavors. It involves being faithful and loyal to obligations, duties, or observances. The opposite of fidelity is infidelity, meaning unfaithfulness.

Freedom

You can only protect your liberties in this world by protecting the other man’s freedom. You can only be free if I am free.

—Dorothy Thompson

Freedom is the quality of being free to make choices for oneself within the boundaries of law. Freedoms enjoyed by citizens of the United States include the freedom of speech, freedom of religion, freedom from want, and freedom from physical aggression.

Honesty/Trustworthiness/Truth Telling

Lies or the appearance of lies are not what the writers of our Constitution intended for our country, it’s not the America we salute every Fourth of July, it’s not the America we learned about in school, and it is not the America represented in the flag that rises above our land.

—Message from the Internet

Honesty and trust involve confidence that a person will act with the right motives. It is the assured reliance on the character, ability, strength, or truth of someone or something. To tell the truth, to have integrity, and to be honest are most honorable virtues. Veracity is devotion to and conformity with what is truthful. It involves an obligation to be truthful.

Truth telling involves providing enough information so that a patient can make an informed decision about his or her health care. Intentionally misleading a patient to believe something that the caregiver knows to be untrue may give the patient false hopes. There is always apprehension when one must share bad news; the temptation is to gloss over the truth for fear of being the bearer of bad news. To lessen the pain and the hurt is only human, but in the end, truth must win over fear.

Integrity

Nearly all men can stand adversity, but if you want to test a man’s character, give him power.

—Abraham Lincoln

Integrity involves a steadfast adherence to a strict moral or ethical code and a commitment not to compromise this code. A person with integrity has a staunch belief in and faithfulness to, for example, his or her religious beliefs, values, and moral character. Patients and professionals alike often make healthcare decisions based on their integrity and their strict moral beliefs. For example, a Jehovah’s Witness generally refuses a blood transfusion because it is against his or her religious beliefs, even if such refusal may result in death. A provider of health care may refuse to participate in an abortion because it is against his or her moral beliefs. A person without personal integrity lacks sincerity and moral conviction and may fail to act on professed moral beliefs.

Kindness

When you carry out acts of kindness, you get a wonderful feeling inside. It is as though something inside your body responds and says, yes, this is how I ought to feel.

—Harold Kushner

Kindness involves the quality of being considerate and sympathetic to another’s needs. Some people are takers, and others are givers. If you go through life giving without the anticipation of receiving, you will be a kinder and happier person.

Respect

Respect for ourselves guides our morals; respect for others guides our manners.

—Laurence Sterne

Respect is an attitude of admiration or esteem. Kant was the first major Western philosopher to put respect for persons, including oneself as a person, at the center of moral theory. He believed that persons are ends in themselves with an absolute dignity, which must always be respected. In contemporary thinking, respect has become a core ideal extending moral respect to things other than persons, including all things in nature.

Caregivers who demonstrate respect for one another and their patients will be more effective in helping them cope with the anxiety of their illness. Respect helps to develop trust between the patient and caregiver and improve healing processes. If caregivers respect the family of a patient, cooperation and understanding will be the positive result, encouraging a team effort to improve patient care.

Hopefulness

Hope is the last thing that dies in man; and though it be exceedingly deceitful, yet it is of this good use to us, that while we are traveling through life, it conducts us in an easier and more pleasant way to our journey’s end.

—Francois de La Rochefoucauld

Hopefulness in the patient care setting involves looking forward to something with the confidence of success. Caregivers have a responsibility to balance truthfulness while promoting hope. The caregiver must be sensitive to each patient’s needs and provide hope.

Tolerance

There is a criterion by which you can judge whether the thoughts you are thinking and the things you are doing are right for you. The criterion is: Have they brought you inner peace? If they have not, there is something wrong with them—so keep seeking! If what you do has brought you inner peace, stay with what you believe is right.

—Peace Pilgrim

Tolerance can be viewed in two ways, positive or negative. (1) Positive tolerance implies that a person accepts differences in others and that one does not expect others to believe, think, speak, or act as himself or herself. Tolerant people are generally free of prejudice and discrimination. Recognizing this fact, Thomas Jefferson incorporated theories of tolerance into the U.S. Constitution. (2) Negative tolerance implies that one will reluctantly put up with another’s beliefs. In other words, they simply tolerate the view of others.

Although tolerance can be viewed as a virtue, not all tolerance is virtuous nor is all intolerance necessarily wrong. An exaggerated tolerance may amount to a vice, whereas intolerance may sometimes be a virtue. For example, tolerating everything regardless of its repugnance (e.g., persecution for religious beliefs) is no virtue, and having intolerance for that which should not be tolerated and is evil is no vice (e.g., brainwashing children to do evil).

Forgiveness

Forgiveness is a virtue of the brave.

—Indira Gandhi

Forgiveness is a virtue and a value. It is the willingness to pardon someone who has wronged you in some way. It is also a form of mercy. Forgiveness is to forgive and let loose the bonds of blame. It is a form of cleansing souls for both those who forgive and those who accept the forgiveness offered.

Forbearing one another, and forgiving one another, if any man have a quarrel against any: even as Christ forgave you, so also do ye.

—Colossians 3:13 (King James Version [KJV])

3.6 RELIGIOUS ETHICS AND SPIRITUALITY

The Great Physician: Dear Lord, You are the Great Physician, I turn to you in my sickness asking for your help. I place myself under your loving care, praying that I may know your healing grace and wholeness. Help me to find love in this strange world and to feel your presence by my bed both day and night. Give my doctors and nurses wisdom that they may understand my illness. Steady and guide them with your strong hand. Reach out your hand to me and touch my life with your peace. Amen.

—University of Pennsylvania Health System

Religion serves a moral purpose by providing codes of conduct for appropriate behavior through revelations from a divine source. These codes of conduct are enforced through fear of pain and suffering and/or hope for reward in the next life for adhering to religious codes and beliefs. Evidence of belief in an afterlife, dating between 58,000 and 68,000 BC, was found in Neanderthal burial sites, where various implements and supplies were buried with the deceased. The prospect of divine justice helps us to tolerate the injustices in this life where goodness is no guarantee of peace, happiness, wellness, or prosperity.

Religion is often used as a reason to justify what, otherwise, could be considered unjustifiable behavior. Political leaders often use religion to legitimize and consolidate their power. Leaders in democratic societies speak of the necessity to respect the right to “freedom of religion.” Militarily, political leaders often use religion to further their political aspirations, using “God is on our side” propaganda. Jihad often is referred to as a holy war against infidels (nonbelievers), the purpose of which is to expand the territories of Muslim nations. This, however, is not unique to Muslim nations. Many political leaders have used religion to justify their actions. Religious persecution has plagued humankind from the beginning of time. The atrocities of evil men strapping bombs to women and children are but a few of the numerous examples of what has occurred throughout the ages.

Many Think God’s Intervention Can Revive the Dying

When it comes to saving lives, God trumps doctors for many Americans. An eye-opening survey reveals widespread belief that divine intervention can revive dying patients. And, researchers said, doctors “need to be prepared to deal with families who are waiting for a miracle.”

—Lindsey Tanner, “Many Believe God Can Revive the Dying,” The Capital, August 19, 2008

Spirituality in the religious sense implies that there is purpose and meaning to life; spirituality generally refers to faith in a higher being. For a patient, injury and sickness are frightening experiences. This fear is often heightened when the patient is admitted to a hospital or nursing home. Healthcare organizations can help reduce patient fears by making available to them appropriate emotional and spiritual support and coping resources. It is a well-proven fact that patients who are able to draw on their spirituality and religious beliefs tend to have a more comfortable and often improved healing experience. To assist both patients and caregivers in addressing spiritual needs, patients should be provided with information as to how their spiritual needs can be addressed.

Difficult questions regarding a patient’s spiritual needs and how to meet those needs are best addressed on admission by first collecting information about the patient’s religious or spiritual preferences. Caregivers often find it difficult to discuss spiritual issues for fear of offending a patient who may have beliefs different from their own. If caregivers know from admission records a patient’s religious beliefs, the caregiver can share with the patient those religious and spiritual resources available in the hospital and community.

A variety of religious beliefs are presented here to note the importance of better understanding why patients differ in decision-making processes and how religion affects one’s beliefs, and to encourage further study of how each religion affects the decision-making process. Hospitals often maintain a directory of contacts for various religious groups for referral and consultation purposes.

Judaism

Jewish Law is the unchangeable 613 mitzvot (commandments) that God gave to the Jews. Halakhah (Jewish Law) comes from three sources: (1) the Torah (the first five books of the Bible); (2) laws instituted by the rabbis; and (3) long-standing customs. The Jewish People is another name for the Children of Israel, referring to the Jews as a nation in the classical sense, meaning a group of people with a shared history and a sense of a group identity rather than a specific place or political persuasion.16

Judaism is a monotheistic religion based on principles and ethics embodied in the Hebrew Bible (Old Testament). The notion of right and wrong is not so much an object of philosophical inquiry as an acceptance of divine revelation. Moses, for example, received a list of 10 laws directly from God. These laws were known as the Ten Commandments. Some of the Ten Commandments are related to the basic principles of justice that have been adhered to by society since they were first proclaimed and published. For some societies, the Ten Commandments were a turning point, where essential commands such as “thou shalt not kill” or “thou shalt not commit adultery” were accepted as law. When caring for the dying, family members will normally want to be present and prayers said. If a rabbi is requested, the patient’s own rabbi should be contacted first.17

Hinduism

Hinduism is a polytheistic religion with many gods and goddesses. Hindus believe that God is everything and is infinite. The earliest known Hindu Scriptures were recorded around 1200 BC. Hindus believe in reincarnation and that one’s present condition is a reflection of one’s virtuous behavior, or lack thereof, in a previous lifetime.

When caring for the dying, relatives may wish to perform rituals at this time. In death, jewelry, sacred threads, or other religious objects should not be removed from the body. Washing the body is part of the funeral rites and should be carried out by the relatives.18

Buddhism

Buddhism is a religion and philosophy encompassing a variety of traditions, beliefs, and practices, largely based on teachings attributed to the Indian prince named Siddhartha Gautama (563–483 BC). He went on a spiritual quest and eventually became enlightened at the age of 35, and from there on, he took the name Buddha. Simply defined, Buddhism is a religion to some and a philosophy to others that encourages one “to do good, avoid evil, and purify the mind.”

When caring for the dying, Buddhists like to be informed about their health status in order to prepare themselves spiritually. A side room with privacy is preferred.19

Falun Gong

Falun Gong, also referred to as Falun Dafa, is a traditional Chinese spiritual discipline belonging to the Buddhist school of thought. It consists of moral teachings, meditation, and four exercises that resemble tai chi and are known in Chinese culture as qigong. Falun Gong does not involve physical places of worship, formal hierarchies, rituals, or membership and is taught without charge. The three principles practiced by the followers are truthfulness, compassion, and forbearance/tolerance toward others. Falun Gong claims followers in 100 countries.

Zen

Zen evolved from Buddhism in Tibet. It emphasizes dharma practice (from the master to the disciple) and experiential wisdom based on learning through the reflection on doing, going beyond scriptural readings. In Zen, Buddhism learning comes through a form of seated meditation known as zazen, where practitioners perform meditation to calm the body and the mind, experience insight into the nature of existence, and thereby gain enlightenment.

Taoism

Taoists believe that ultimate reality is unknowable and unperceivable. The founder of Taoism is believed to be Lao Tzu (6 BC). Taoist doctrine includes the belief that the proper way of living involves being in tune with nature. Everything is ultimately interblended and interacts.

Christianity

Christians accept both the Old and New Testament as being the word of God. The New Testament describes Jesus as being God, taking the form of man. He was born of the Virgin Mary and sacrificed his life by suffering crucifixion, and after being raised from the dead on the third day, he ascended into Heaven from which he will return to raise the dead, at which time the spiritual body will be united with the physical body. His death, burial, and resurrection provide a way of salvation through belief in Him for the forgiveness of sin. God is believed to be manifest in three persons: the Father, Son, and Holy Spirit.

The primary and final authority for Christian ethics is found in the life, teachings, ministry, death, and resurrection of Jesus Christ. He clarified the ethical demands of a God-centered life by applying the obedient love that was required of Peter. The Ten Commandments are accepted and practiced by both Christians and Jews.

Christians, when determining what the right thing to do is, often refer to the Golden Rule, which teaches, “do unto others as you would have them do unto you,” a common principle in many moral codes and religions.

There have been and continue to be numerous interpretations of the meaning of the scriptures and its different passages. This has resulted in a plethora of churches with varying beliefs. As noted later, such beliefs can affect a patient’s wishes for health care. However, the heart of Christian beliefs is found in the book of John, Chapter 3, Verse 16:

For God so loved the world, that he gave his only begotten and Son, that whosoever believeth in him should not perish, but have everlasting life.

—John 3:16 (KJV)

The Apostle Paul proclaimed that salvation cannot be gained through good works, but through faith in Jesus Christ as savior. He recognized the importance of faith in Christ over good works in the pursuit of salvation.

That if thou shalt confess with thy mouth the Lord Jesus, and shalt believe in thine heart that God hath raised him from the dead, thou shalt be saved.

—Romans 10:9 (KJV)

The Apostle Paul, however, did not dismiss the importance of good works. Good works are described as the fruit of one’s faith. In other words, good works follow faith.

When caring for the dying, services of the in-house chaplain and/or one’s religious minister should be offered to the patient. A Catholic priest should be offered when last rites need to be administered to those of the Catholic faith.

Islam

The Islamic religion believes there is one God: Allah. Muhammad (570–632 AD) is considered to be a prophet/messenger of God. He is believed to have received revelations from God. These revelations were recorded in the Qur’an, the Muslim Holy Book. Muslims accept Moses and Jesus as prophets of God. The Qur’an is believed to supersede that of the Torah and the Bible. Muslims believe that there is no need for God’s grace and that their own actions can merit God’s mercy and goodness. Humans are believed to have a moral responsibility to submit to God’s will and to follow Islam as demonstrated in the Qur’an.

When caring for the dying, patients may want to die facing Mecca (toward the southeast) and be with relatives. Many Muslims follow strict rules in respect of the body after death.20

Religious Beliefs and Duty Conflict

Religious beliefs and codes of conduct sometimes conflict with the ethical duty of caregivers to save lives. Jehovah’s Witnesses, for example, believe that it is a sin to accept a blood transfusion since the Bible states that we must “abstain from blood” (Acts 15:29). Current Jehovah’s Witness doctrine, in part, states that blood must not be transfused. In order to respect this belief, bloodless surgery is available in a number of hospitals to patients who find it against their religious beliefs to receive a blood transfusion.

The right to refuse a blood transfusion or any other treatment must be honored even in emergent situations where the patient is unconscious. Whether for a parent or child it may become necessary to seek a court’s guidance to make exceptions for such transfusions. Because time is of the essence in many cases, it is important that the legal system (e.g., legislative bodies and the courts) work with hospitals and the church to provide guidance in advance in order to protect caregivers while also respecting the rights of patients.

3.7 SECULAR ETHICS

Unlike religious ethics, secular ethics are based on codes developed by societies that have relied on customs to formulate their codes. The Code of Hammurabi, for example, carved on a black Babylonian column 8 feet high, now located in the Louvre in Paris, depicts a mythical sun god presenting a code of laws to Hammurabi, a great military leader and ruler of Babylon (1795–1750 BC). Hammurabi’s code of laws is an early example of a ruler proclaiming to his people an entire body of laws. The following excerpts are from the Code of Hammurabi.

Code of Hammurabi

215

If a physician make a large incision with an operating knife and cure it, or if he open a tumor (over the eye) with an operating knife, and saves the eye, he shall receive ten shekels in money.

218

If a physician make a large incision with the operating knife, and kill him, or open a tumor with the operating knife, and cut out the eye, his hands shall be cut off.

219

If a physician make a large incision in the slave of a freed man, and kill him, he shall replace the slave with another slave.

221

If a physician heal the broken bone or diseased soft part of a man, the patient shall pay the physician five shekels in money.

3.8 PROFESSIONAL ETHICS

My life is my message.

—Mahatma Gandhi

Professional ethics are standards or codes of conduct established by the membership of a specific profession. Most professions have a code of ethics designed to describe what is right and wrong conduct, including acceptable behaviors and expectations of a profession’s membership. Professionals are expected to follow ethical guidelines in the practice of their profession.

Healthcare professionals are governed by ethical codes that demand a high level of integrity, honesty, and responsibility. It is the direct caregiver who is often confronted with complex ethical dilemmas in the delivery of patient care. Because of the ethical dilemmas facing healthcare providers, professional codes of ethics have been developed to provide guidance.

Codes of ethics are created in response to actual or anticipated ethical conflicts. Considered in a vacuum, many codes of ethics would be difficult to comprehend or interpret. It is only in the context of real life and real ethical ambiguity that the codes take on any meaning.

Codes of ethics and case studies need each other. Without guiding principles, case studies are difficult to evaluate and analyze; without context, codes of ethics are incomprehensible. The best way to use these codes is to apply them to a variety of situations and see what results. It is from the back and forth evaluation of the codes and the cases that thoughtful moral judgments can best arise.21

The Center for the Study of Ethics in the Professions at the Illinois Institute of Technology received a grant from the National Science Foundation to put a collection of over 850 codes of ethics on the Internet. This center’s website includes links to the ethical codes of professional societies, corporations, government agencies, and academic institutions. Additional information can be found at their website: http://www.iit.edu/departments/csep/PublicWWW/codes/index.html.

The contents of codes of ethics vary depending on the risks associated with a particular profession. For example, ethical codes for psychologists define relationships with clients in greater depth because of the personal one-to-one relationship they have with their clients. Laboratory technicians and technologists, on the other hand, generally have little or no personal contact with patients but can have a significant impact on their care. In their ethical code, laboratory technologists pledge accuracy and reliability in the performance of tests. The importance of this pledge was borne out in a March 11, 2004, report by the Baltimore Sun, whereby state health officials discovered that a hospital’s laboratory personnel overrode controls in testing equipment showing results that might be in error and then mailed them to patients anyway.

The following cases illustrate some examples of ethical misconduct involving health professionals.

Documentation Falsified

The nurse in Williams v. Bd. of Exam’rs for Prof. Nurses
22 improperly, incompletely, or illegibly documented the delivery of nursing care and failed to adhere to established standards in the practice setting to safeguard patient care. Based on these findings, the hearing examiner determined that the nurse was guilty of conduct derogatory to the morals or standing of the profession of registered nursing. The West Virginia Board of Examiners for Registered Professional Nurses has the power to deny, revoke, or suspend any license to practice registered professional nursing upon proof that the nurse is guilty of conduct derogatory to the morals or standing of the profession of registered nursing. Conduct that qualifies as derogatory to the morals or standing of the nursing profession includes improperly, incompletely, or illegibly documenting the delivery of nursing care.

The board proved that the nurse improperly documented the delivery of nursing care. Williams specifically charted that she was in the client’s home during lunch hours. The agency, however, in reviewing its time sheets found that a homemaker was in the patient’s home during lunch hours. Upon its review of the board’s action, the circuit court upheld the board’s action. The appellate court affirmed the order of the circuit court.

Psychologist’s Sexual Misconduct

The defendant-psychologist in Gilmore v. Board of Psychologist Examiners
23 claimed that sexual improprieties with clients did not take place during treatment sessions. The board of psychologist examiners revoked the psychologist’s license for sexual improprieties. The psychologist petitioned for judicial review. She argued that therapy had terminated before the sexual relationships began. The court of appeals held that evidence supported the board’s conclusion that the psychologist violated an ethical standard in caring for her patients. When a psychologist’s personal interests intrude into the practitioner–client relationship, the practitioner is obliged to recreate objectivity through a third party. The board’s findings and conclusions indicated that the petitioner failed to maintain that objectivity.

Attorney–Minister Misconduct

A minister was paid by an attorney to attend a hospital chaplain’s course in furtherance of a plan whereby the minister could gain access to the emergency areas of a hospital in order to solicit patients and their families for the purpose of aiding the attorney in gaining legal cases based on negligence and malpractice. The improper solicitations were a part of organized schemes that lasted for years with multiple offenses, including two different schemes that led to at least 22 improper solicitations. Disbarment was decided to be appropriate with respect to an attorney who hired an ordained minister as a paralegal.24

3.9 ETHICS COMMITTEE

I expect to pass through the world but once. Any good therefore that I can do, or any kindness I can show to any creature, let me do it now. Let me not defer it, for I shall not pass this way again.

—Stephen Grellet25

Healthcare ethics committees address legal–ethical issues that arise during the course of a patient’s care and treatment. They serve as a resource for patients, families, and staff and offer objective counsel when dealing with difficult healthcare issues. Ethics committees provide both educational and consultative services to patients, families, and caregivers. They enhance, but do not replace, important patient/family–physician relationships; nevertheless, they afford support for decisions made within those relationships. The numerous ethical questions facing health professionals involve the entire life span, from the right to be born to the right to die. Ethics committees concern themselves with issues of morality, patient autonomy, legislation, and states’ interests.

Although ethics committees first emerged in the 1960s in the United States, attention was focused on them in the 1976 landmark Quinlan case,26 where the parents of Karen Ann Quinlan were granted permission by the New Jersey Supreme Court to remove Karen from a ventilator after she had been in a coma for a year. She died 10 years later at the age of 31, having been in a persistent vegetative state the entire time. The Quinlan court looked to a prognosis committee to verify Karen’s medical condition. It then factored in the committee’s opinion with all other evidence to reach the decision to allow withdrawing her life-support equipment. To date, ethics committees do not have sole surrogate decision-making authority; however, they play an ever-expanding role in the development of policy and procedural guidelines to assist in resolving ethical dilemmas. Most organizations describe the functioning of the ethics committee and how to access the committee at the time of admission in patient handbooks and informational brochures.

Committee Structure

To be successful, an ethics committee should be structured to include a wide range of community leaders in positions of political stature, respect, and diversity. The ethics committee should be comprised of a multidisciplinary group of people, whose membership should include an ethicist, educators, clinicians, legal advisors, and political leaders as well as members of the clergy, a quality improvement manager, and corporate leaders from the business community. Ethics committees, all too often, are comprised mostly of hospital employees and members of the medical staff with a token representation from the community.

Goals of Ethics Committees

The goals of ethics committees often include support, by providing guidance to patients, families, and decision makers; reviewing cases, as requested, when there are conflicts in basic values; providing assistance in clarifying situations that are ethical, legal, or religious in nature and extend beyond the scope of daily practice; assisting in clarifying issues to discuss alternatives and compromises; promoting the rights of patients; assisting the patient and family, as appropriate, in coming to consensus with the options that best meet the patient’s care needs; promoting fair policies and procedures that maximize the likelihood of achieving good, patient-centered outcomes; and enhancing the ethical tenor of both healthcare organizations and professionals.

Committee Functions

The functions of ethics committees are multifaceted and include development of policy and procedure guidelines to assist in resolving ethical dilemmas; staff and community education; conflict resolution; case reviews, support, and consultation; and political advocacy. The degree to which an ethics committee serves each of these functions varies in different healthcare organizations.

Policy and Procedure Development

The ethics committee is a valuable resource for developing hospital policies and procedures to provide guidance to healthcare professionals when addressing ethical dilemmas.

Educational Role

The ethics committee helps to develop resources for educational purposes to help both in-hospital and ambulatory staff develop the appropriate competencies for addressing legal, ethical, and spiritual issues. Educational programs on ethical issues are developed for ethics committee members, staff, patients, and the community (e.g., how to prepare an advance directive).

Understanding the spiritual needs of patients of varying beliefs should be a component of the education, policy development, and consultative functions of ethics committees. Most hospitals provide staff with resources that describe various religious beliefs and how to access those resources for patients of various religious persuasions.

Consultation and Conflict Resolution

Ethics consultations are helpful in resolving uncertainty and disagreements over healthcare dilemmas. Ethics committees often provide consultation services for patients, families, and caregivers struggling with difficult treatment decisions and end-of-life dilemmas. Always mindful of its basic orientation toward the patient’s best interests, the committee provides options and suggestions for resolution of conflict in actual cases. Consultation with an ethics committee is not mandatory, but is conducted at the request of a physician, patient, family member, or other caregiver.

The ethics committee strives to provide viable alternatives that will lead to the optimal resolution of dilemmas confronting the continuing care of the patient. It is important to remember that an ethics committee functions in an advisory capacity and should not be considered a substitute proxy for the patient.

Requests for Consultations

Requests for ethics consultations often involve clarification of issues regarding decision-making capacity, informed consent, advance directives, and withdrawal of treatment. Consultations should be conducted in a timely manner considering, for example, who requested the consultation, what are the issues, is there a problem that needs referral to another service, and what specifically is being requested of the ethics committee?

When conducting a consultation, all patient records must be reviewed and discussed with the attending physician, family members, and other caregivers involved in the patient’s treatment. If an issue can be resolved easily, a designated member of the ethics committee should be able to consult on the case without the need for a full committee meeting. If the problem is unusual, problematic, or delicate, or has important legal ramifications, a full committee meeting should be called. Others who can be invited to an ethics committee case review, as appropriate, include the patient, if competent; relatives, agents, or surrogate decision makers; and caregivers.

Pre-evaluation case consultations should take the following into consideration: the patient’s current medical status, diagnosis, and prognosis; the patient’s mental status and ability to make decisions, understand the information that is necessary to make a decision, and clearly understand the consequences of one’s choice; benefits and burdens of recommended treatment or alternative treatments; life expectancy, treated and untreated; views of caregivers and consultants; pain and suffering; quality-of-life issues; and the financial burden on family (e.g., if the patient is in a comatose state with no hope of recovery, should the spouse deplete his or her finances to maintain the spouse on a respirator?).

Decisions concerning patient care must take into consideration the patient’s personal assessment of the quality of life; current expressed choices; advance directives; competency to make decisions; ability to process information rationally to compare risks, benefits, and alternatives to treatment; ability to articulate major factors in decisions and reasons for them; and ability to communicate.

The patient must have all the information necessary to allow a reasonable person to make a prudent decision on his or her own behalf. The patient’s choice must be voluntary and free from coercion by family, physicians, or others.

Family members must be identified, and the following questions must be considered when making decisions: Do family members understand the patient’s wishes; is the family in agreement with the patient’s wishes; does the patient have an advance directive; has the patient appointed a surrogate decision maker; are there any religious proscriptions; are there any financial concerns; and are there any legal factors (applicable state statutes and case law)?

When an ethics committee is engaged in the consulting process, its recommendations should be offered as suggestions, imposing no obligation for acceptance on the part of the patient, organization, its governing body, medical staff, attending physicians, or other persons. An example of an ethics committee consultation form is presented in Exhibit 3-1.

When conducting a formal consultation, ethics committees should identify the ethical dilemma (i.e., reasons why the consult was requested); be sure that the appropriate “Consultation Request” form has been completed; identify relevant facts (e.g., diagnosis and prognosis, patient goals and wishes, regulatory and legal issues, professional standards and codes of ethics, institutional policies and values); identify stakeholders; identify moral issues (e.g., human dignity, common good, justice, beneficence, respect for autonomy, informed consent, medical futility); identify legal issues; consider alternative options; conduct consultation (review, discuss, and provide reasoning for recommendations); review and follow up; include family members in committee discussion; ask family members what their hopes and expectations are; and document consultations.

Expanding Role of the Ethics Committee

The role of an organization’s ethics committee is evolving into more than a group of individuals who periodically gather together to meet regulatory requirements and review and address advance directives and end-of-life issues. The function of an organizational ethics committee has an ever-expanding role as noted below.

The wide variety of ethical issues that an ethics committee can be involved in is somewhat formidable. Although an ethics committee cannot address every issue that one could conceivably imagine, the ethics committee should periodically reevaluate its scope of activities and effectiveness in addressing ethical issues.

• Dilemma of blind trials: Who gets the placebo when the investigational drug looks very promising?

• Informed consent: Are patients adequately informed as to the risks, benefits, and alternative procedures that may be equally effective, knowing that one procedure may be more risky or damaging than another (e.g., lumpectomy versus a radical mastectomy)?

EXHIBIT 3-1 Ethics Committee Consultation

• What is the physician’s responsibility for informing the patient of his or her education, training, qualifications, and skill in treating a medical condition or performing an invasive procedure?

• What is the role of the ethics committee when the medical staff is reluctant or fails to take timely action, knowing that one of its members practices questionable medicine?

• Should a hospital’s medical staff practice evidence-based medicine or follow its own best judgment?

• To what extent should the organization participate in and/or support genetic research?

• How should the ethics committee address confidentiality issues?

• To what extent should medical information be shared with the patient’s family?

• To what extent should the organization’s leadership control the scope of issues that the ethics committee addresses?

• Who provides information to the patient when mistakes are made relative to his or her care?

Although organizational politics may prevent an ethics committee from becoming involved in many of the issues just described, ethics committees need to review their functions periodically and redefine themselves. The ethics committee’s involvement in the organizational setting has been for the most part strictly advisory. However, its full potential and value to an organization has yet to be fully understood and accepted. The ethics committee membership should provide a full assessment of its activities on an annual basis to the organization’s leadership, along with suggested goals for expanding its role within the organization.

Ethics Committee Serves as Guardian

The Kentucky Supreme Court ruled in Woods v. Commonwealth
27 that Kentucky’s Living Will Directive, allowing a court-appointed guardian or other designated surrogate to remove a patient’s life support systems, is constitutional. The patient in this case, Woods, had been placed on a ventilator after having a heart attack. It was generally agreed that he would never regain consciousness and would die in 2 to 10 years. After a recommendation of the hospital ethics committee, Woods’s guardian at the time asked for approval to remove Woods’s life support. The Kentucky Supreme Court affirmed an appeals court decision, holding that:

• If there is no guardian, but the family, physicians, and ethics committee all agree with the surrogate, there is no need to appoint a guardian.

• If there is a guardian and all parties agree, there is no need for judicial approval.

• If there is disagreement, the parties may petition the courts.28

Removal of life support will be prohibited, absent clear and convincing evidence that the patient is permanently unconscious or is in a persistent vegetative state.

Convening the Ethics Committee

The ethics committee is not a decision maker, but a resource that provides advice to help guide others in making wiser decisions when there is no clear best choice. A unanimous opinion is not always possible when an ethics committee convenes to consider the issues of an ethical dilemma; however, consultative advice as to a course of action to resolve the dilemma is often the role of the ethics committee. Any recommendations for issue resolution reached by the ethics committee must be communicated to those most closely involved with the patient’s care. Sensitivity to each family member’s values and assisting them in coping with whatever consensus decision is reached is a must. Unresolved issues often need to be addressed and a course of action followed. Each new consultation presents new opportunities for learning and teaching others how to cope with similar issues. Guidelines for resolving ethical issues will always be in a state of flux. Each new case presents new challenges and learning opportunities.

Making a decision and suggesting a course of action requires accepting the fact that there will be elements of right and wrong in the final decision. The idea is to cause the least pain and provide the greatest benefit.

Failure to Convene Bioethics Committee

In a medical malpractice suit, the Stolles (appellants) sought damages from physicians and hospitals (appellees) for disregard of their instructions not to use “heroic efforts” or artificial means to prolong the life of their child, Mariel, who was born with brain damage. The Stolles argued that such negligence resulted in further brain damage to Mariel, prolonged her life, and caused them extraordinary costs that will continue as long as the child lives. The Stolles had executed a written “Directive to Physicians” on behalf of Mariel in which they made known their desire that Mariel’s life not be artificially prolonged under the circumstances provided in that directive.

Mariel suffered a medical episode after regurgitating her food. An unnamed, unidentified nurse–clinician administered chest compressions for 30 to 60 seconds, and Mariel survived. The Stolles sued, alleging the following, among other things:

• Appropriate medical entries were not made in the medical record to reflect the Stolles’ wishes that caregivers refrain from “heroic” life-sustaining measures.

• Lifesaving measures were initiated in violation of the physician’s orders. The hospital did not follow the physician’s orders, which were in Mariel’s medical chart, when chest compressions and mechanically administered breathing to artificially prolong Mariel’s life were applied, and a bioethics committee meeting was not convened to consider the Stolles’ wishes and the necessity of a do-not-resuscitate (DNR) order.

The central issue in this case is whether appellees are immune from liability under the Texas Natural Death Act. Section 672.016(b) of the Texas Natural Death Act provides the following: “A physician, or a health professional acting under the direction of a physician, is not civilly or criminally liable for failing to effectuate a qualified patient’s directive” [Tex. Health & Safety Code Ann. A4 672.016(b) (Vernon 1992)]. A “qualified patient” is a “patient with a terminal condition that has been diagnosed and certified in writing by the attending physician and one other physician who have personally examined the patient.” A “terminal condition” is an “incurable condition caused by injury, disease, or illness that would produce death regardless of the application of life-sustaining procedures, according to reasonable medical judgment, and in which the application of life-sustaining procedures serves only to postpone the moment of the patient’s death.”

Mariel was not in a terminal condition, as appellees alleged. The Stolles failed to cite any authority that would have allowed the withdrawal of life-sustaining procedures in a lawful manner. The Texas Natural Death Act, therefore, provided immunity to the caregivers for their actions in the treatment and care of Mariel.29

Patient Not in a Persistent Vegetative State

A guardian may only direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward.

Edna’s sister and court-appointed guardian, Spahn, sought permission to direct the withholding of Edna’s nutrition, claiming that her sister would not want to live in this condition; however, the only testimony presented at trial regarding Edna’s views on the use of life-sustaining medical treatment involves a statement made 30 years earlier. At that time, Spahn and Edna were having a conversation about their mother, who was recovering from depression, and Spahn’s mother-in-law, who was dying of cancer. Spahn testified that during this conversation, Edna said to her that she would rather die of cancer than lose her mind. Spahn further testified that this was the only time that she and Edna discussed the subject and that Edna never said anything specifically about withholding or withdrawing life-sustaining medical treatment. The “ethics committee” at the nursing facility where Edna lives met to discuss the issue of withholding artificial nutrition from Edna. The committee approved withholding nutrition if no family member objected; however, one of Edna’s nieces refused to sign a statement approving the withdrawal of nutrition.

The record speaks very little to what Edna’s desires would be, and there was no clear statement of what her desires would be today under the current conditions. Her friends and family never had any conversations with her discussing her feelings or opinions about withdrawing nutrition or hydration, and she did not execute any advance directives expressing her wishes while she was competent.

Consequently, the court held that a guardian may only direct the withdrawal of life-sustaining medical treatment, including nutrition and hydration, if the incompetent ward is in a persistent vegetative state and the decision to withdraw is in the best interests of the ward. In this case, where the only indication of Edna’s desires was made at least 30 years ago and under different circumstances, there is not a clear statement of intent such that Edna’s guardian may authorize the withholding of her nutrition.

The circuit judge concluded his own questioning of one member of the ethics committee, “The way I understand it, what you really have is a liability problem, and that’s why you want everybody to consent, is that correct?” Dr. Erickson answered, “That is correct.”30

3.10 REASONING AND DECISION MAKING

Reason guides our attempt to understand the world about us. Both reason and compassion guide our efforts to apply that knowledge ethically, to understand other people, and have ethical relationships with other people.

—Molleen Matsumura

Reasoning is the process of forming conclusions, judgments, or inferences based on one’s interpretation of facts or premises that help support a conclusion. Reasoning includes the capacity for logical inference and the ability to conduct inquiry, solve problems, evaluate, criticize, and deliberate about how we should act and to reach an understanding of other people, the world, and ourselves.31 Partial reasoning involves bias for or against a person based on one’s relationship with that person. Circular reasoning describes a person who has already made up his or her mind on a particular issue and sees no need for deliberation (i.e., “Don’t confuse me with the facts”). For example, consider the following: “Mr. Smith has lived a good life. It’s time to pull the plug. He is over 65 and, therefore, should not have any rights to donated organs. Donated organs should be given to younger people.” The rightness or wrongness of this statement is a moral issue and should be open for discussion, fact-finding, evaluation, reasoning, and consensus decision making.

Ethical Dilemmas

Ethical dilemmas arise when ethical principles and values are in conflict. Healthcare dilemmas often occur when there are alternative choices, limited resources, and differing values among patients, family members, and caregivers. An ethical dilemma arises when, for example, the principles of autonomy and beneficence conflict with one another. Coming to an agreement may mean sacrificing one’s personal wishes and following the road where there is consensus. Consensus building can happen only when the parties involved can sit and reason together. The process of identifying the various alternatives to an ethical dilemma, determining the pros and cons of each choice, and making informed decisions requires a clear, unbiased willingness to listen, learn, and, in the end, make an informed decision. Remember that ethical decision making is the process of determining the right thing to do in the event of a moral dilemma.

3.11 MORAL COMPASS GONE ASTRAY

The world is a dangerous place. Not because of the people who are evil; but because of the people who don’t do anything about it.

—Albert Einstein

Political corruption, antisocial behavior, declining civility, and rampant unethical conduct have heightened discussions over the nation’s moral decline and decaying value systems. The numerous instances of questionable political decisions; numbers-cooking executives with exorbitant salaries, including healthcare executives working for both for-profit and nonprofit organizations; cheating at work and in school; and the proliferation of X-rated websites have contributed to this decline. Legislators, investigators, prosecutors, and the courts are finally stepping up to the plate and are taking action. The question, however, remains: Can this boat be turned around, or are we just plugging the holes with new laws and creating more leaks in a misdirected sinking boat? The answer is more likely to be a return to practicing the values upon which this nation was founded.

The continuing trend of consumer awareness of declining value systems, coupled with increased governmental regulations, mandates that caregivers understand ethics and the law and their interrelationships.

The saying goes that if you do not learn from history, you are doomed to repeat it. If you have not learned and do not apply the generally accepted moral principles (e.g., do good and do no harm) and the moral values (e.g., respect and compassion) described in this chapter, you will not have a moral compass to guide you.

SUMMARY THOUGHT

Be careful of your thoughts, for your thoughts inspire your words. Be careful of your words, for your words precede your actions. Be careful of your actions, for your actions become your habits. Be careful of your habits, for your habits build your character. Be careful of your character, for your character decides your destiny.

—Chinese Proverb

We No Longer Have Moral Compass

Hartford Police Chief Daryl Roberts questioned the city’s “moral compass” a week after bystanders and drivers maneuvered around the motionless body of 78-year-old victim of a hit-and-run crash….

“At the end of the day we’ve got to look at ourselves and understand that our moral values have now changed,” Roberts said. “We have no regard for each other.”

—WFSB.com, “Chief: ‘We No Longer Have Moral Compass,’” Hartford, CT, June 6, 2008

Although you cannot control the amount of time you have in this lifetime, you can control your behavior by adopting the virtues and values that will define who you are, what you will become, and how you will be remembered or forgotten.

Become who you want to be and how you want to be remembered. The formula is easy and well described in the previous quote in what has been claimed to be a Chinese proverb. Read it. Reread it. Write it. Memorize it. Display it in your home, at work, and in your car, and most of all, practice it, always remembering it all begins with thoughts.

My words fly up, my thoughts remain below: Words without thoughts never to heaven go.

—William Shakespeare

Control your thoughts, and do not let them control you. As to words, they are the tools of thought. They can be sharper than any double-edged sword and hurt, or they can do good and heal. It is never too late to change your thoughts, as long as you have air to breathe. Your legacy may be short, but it can be powerful.

Helpful Hints

The reason for studying ethical and legal issues is to understand and help guide others through the decision-making process as it relates to ethical dilemmas. The following are some helpful guidelines when faced with ethical dilemmas:

• Be aware of how everyday life is full of ethical decisions and that numerous ethical issues can arise when caring for patients.

• Help guide others to make choices.

• Ask your patient how you might help him or her.

• Be aware of why you think the way you do. Do not impose your beliefs on others.

• Ask yourself whether you agree with the things you do. If the answer is no, ask yourself how you should change.

• When you are not sure what to do, the wise thing to do is to talk it over with another person, preferably someone whose opinion you trust.

• Do not sacrifice happiness for devotion to others.

• Do not lie to avoid hurting someone’s feelings.

CHAPTER REVIEW

1. Ethics is the branch of philosophy that seeks to understand the nature, purposes, justification, and founding principles of moral rules and the systems they comprise.

• Ethics involves making sound judgments, good decisions, and right choices.

• Microethics involves an individual’s view of what is right and wrong based on his or her life experiences.

• Macroethics involves a more generalized view of right and wrong.

• Bioethics addresses such difficult issues as the nature of life, the nature of death, what sort of life is worth living, what constitutes murder, how we should treat people who are especially vulnerable, and the responsibilities we have to other human beings.

2. Morality is a code of conduct and a guide to good behavior.

• Moral judgments are those judgments concerned with what an individual or group believes to be the right or proper behavior in a given situation.

• There is no universal morality.

• Morality is often legislated when differences cannot be resolved because of conflicting moral codes with varying opinions as to what is right and what is wrong.

• Laws are created to set boundaries for societal behavior.

3. Theories of ethics

• Normative ethics is the attempt to determine what moral standards should be followed so that human behavior and conduct may be morally right.

• General normative ethics is the critical study of major moral precepts of such matters as what things are right, what things are good, and what things are genuine.

• Applied ethics is the application of normative theories to practical moral problems.

• Descriptive ethics, also known as comparative ethics, deals with what people believe to be right and wrong.

• Meta-ethics seeks to understand ethical terms and theories and their application.

• Consequential ethical theory emphasizes that the morally right action is whatever action leads to the maximum balance of good over evil.

• Situational ethics refers to a particular view of ethics in which absolute standards are considered less important than the requirements of a particular situation.

• Utilitarian ethics involves the concept that the moral worth of an action is solely determined by its contribution to overall utility.

• Deontologic ethics focuses on one’s duties to others. Deontology is an ethical analysis according to a moral code or rules.

• Nonconsequential ethics denies that the consequences of an action or rule are the only criteria for determining the morality of an action or rule.

• Ethical relativism is the theory that holds that morality is relative to the norms of one’s culture.

4. Principles of ethics are universal rules of conduct.

• Beneficence: the principle of doing good, demonstrating kindness, showing compassion, and helping others.

◦ Paternalism is a form of beneficence that can involve withholding information from a person because of the belief that doing so is in the best interest of that person.

◦ Medical paternalism involves making choices for patients who are capable of making their own choices; it directly violates patient autonomy.

• Nonmaleficence: ethical principle that requires caregivers to avoid causing patients harm.

• Justice: the obligation to be fair in the distribution of benefits and risks.

◦ Distributive justice: a principle that requires treatment of all persons equally.

• Autonomy: the right of a person to make one’s own decisions.

5. Virtue ethics focuses on the inherent character of a person rather than on the specific actions he or she performs.

• Virtue: that which has moral excellence or beneficial quality.

◦ Characteristics that differentiate good people from bad people.

• Value is something that has worth. Values are used for judging the goodness or badness of some action.

◦ Intrinsic value is something that has value in and of itself (e.g., compassion, honesty, respect).

◦ Instrumental value helps to give value to something else (e.g., money).

6. Religious ethics serves a moral purpose by providing codes of conduct for appropriate behavior through revelations from a divine source.

7. Secular ethics is based on codes developed by societies that have relied on customs to formulate their codes of ethics.

8. Professional ethics is a set of standards or codes of conduct established by the membership of a specific profession.

9. Healthcare ethics committees

• Address legal-ethical issues that arise during the course of a patient’s care and treatment.

• Serve as a hospital resource to patients, families, and staff, offering an objective counsel when dealing with difficult healthcare issues and decisions.

• Committee should be structured to include a wide range of community leaders.

• Goals of the ethics committee include:

◦ Promote patient rights.

◦ Assist patient and family in resolving ethical dilemmas.

◦ Educate and advise healthcare providers, patients, and families on how to analyze ethical dilemmas.

◦ Serve as a hospital resource designed to offer objective counsel.

• The committee performs functions by:

◦ Developing policy and procedure guidelines to assist in resolving ethical dilemmas

◦ Educating staff and community

◦ Resolving conflicts

◦ Reviewing cases

◦ Offering support and consultation

◦ Offering political advocacy

◦ Providing consultation services when conflict arises

10. Reasoning is the process of forming conclusions, judgments, or inferences based on one’s interpretation of facts or premises.

• Partial reasoning involves bias for or against a person based on one’s relationship with that person.

• Circular reasoning describes a person who has already decided the correctness of something.

Explain why caregivers are considered patient adv

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