Dr. Pat. Rel., Pat. Abandonment, Confid. Rel, Pat's
Pers'al Autonomy Issues
2 Ways of Analyzing Dr's Neg. 2 Pat.
- Stand. of care
- Adv's 4 Pat.: Punitive Damage in CA
- Civ Code 3294 4 punitive
- Fraud, oppress, malice, / consc. disregard
- Er's liab. 4 ee when
- Prior knowledge of unfit ee
- Consc. disregard
- Auth'ed wrong conduct
- Pers'ly involved in fraud
- Civ Pro 425.13
- File pre-trial motion w/in 2 yrs. of complaint
w/adm'able evid. 2 est. subst'l % that P will prevail on punitive
- Caps nonecon. damage 2 $250k
- Plead Stand. of K
- Existing K / plead terms w/suff. specif. if no
- Longer S/L w/oral as 2 yrs & written as 4
- Not prove stand. of care but term & breach
- Exculp. Prov. Invalid if Affect Pub. Int. by
- Busi. of pub. reg.
- Perf's serv. of imp. 2 pub. & pract'ly nec.
- Wrilling 2 perf. serv.
- Adv. of barg'ing strength & exercises stand.
adhesion K of exculpation w/o giving protection against neg.
- Purchaser under control / risk of carelessness
- Not allowed 4 neg.
- Dr. fails 2 prov. nec. med. care 2 current pat.
w/o adeq. justif.
- Pat. Abandonment C/A
- Cont'ing Rel. w/ Dr. / Some Other Rel. 4 Duty
2 Cont. Care
- Could have 3rd party benefic. from HMO K 2 dr.
- Dr. has cont'ing resp. 2 pat. until term. rel.
- Rel. not end after treatment unless pat. / dr.
takes aff. steps
- Pat. can fire
- Dr. can
- Written notice of term.
- Rsbl opp. 2 find substitute care
- No need 2 give rsns
- Pat.'s Rsbl Expectation 4 Care
- Factor in dr's billing record even if $0
- Dr. Failed 2 Carry Out Oblgn
- Patient Dumping
- Divert Poor Away From Hosp.
- EMTALA (Emergency
Med. Treatment Active Labor Act): Fed Stt
- Hosp. w/Medicare agmt w/ER dept must give approp.
med. screening test w/in capability of ER's dept + routinely available
ancillary serv's 2 any indiv. walking into ER 2 det. emergency
- Hosp's oblgn
- Med screening exam
- Can't condition on ability 2 pay
- Same exams 4 all similarly conditioned pat.'s
- Exam capable @ that X
- HCFA has discretion 2 see if delegated person
(like nurse) really qualified 2 perf.
- Routine ancillary serv's
- Keep written list of spec. Dr.'s on call 2 stabilize
- Aff. legal oblgn 2 come otherwise
- Report 2 HCFA
- Gen'ly 4 no dr. pat.'s
- If pat. has dr., then must come in 24 hrs. a
- Coop. of on call dr.'s by
- Bylaws of hosp.
- Indep. k'or 2 prov. group of serv.
- Emergency medical condition
- Treat until stable
- Acute symptoms of suff. severity so absence of
imm. med. attn could rsbly B expected 2
- Place indiv.'s health in serious jeopardy /
- Serious impairment 2 bodily fn.'s
- Serious disfn. of any bodily organ / part
- Preg. woman having contractions
- Inadeq. X 2 effect safe transf. 2 another hosp.
- Transf. may pose a threat 2 health / safety of
woman / unborn child
- Walking into ER Dept
- Anybody can in any parameter of hosp., incl'ing
- Any movement
- If stabilize, can transf. b/c no longer w/in
- Can't transf. unstable pat.'s unless
- Pat. consents
- Written certif. that risk outweighed by benefit
- Do as much stabilizing
- Call receiving hosp. 2 accept transf.
- Report 2 HSC / HCFA any X rsn 2 believe received
unstable pat.'s, otherwise viol. EMTALA
- Transf'ing hosp. must send name & address
of on call dr.'s refusing 2 appear, otherwise viol. EMTALA
- Fine up 2 $50k 2 hosp. & dr.
- Could B excl'ed from Medicare / caid
- Lose tax exemption
- Priv. fed. C/A against hosp.
- Good Samaritan: B & P Code 2395 4 CA
- No Civil Liab. 4 Acts / Omission of Emergency
Care @ Scene of Emergency
- Can B anywhere
- Must have no legal duty 2 respond, which excl's
on call dr.'s
- Spec. Exception 4 Obstretrician
- On call basis 4 ER +
- Good faith rendered serv. while on call
Dr. Pat. Confid. Rel.
- CEC §56.10)a
- Can't Discl. Med. Info w/o Auth. Unless
- Mandatory Discl: §56.10)b
- Ct order
- Compelled by adm. agency
- Party 2 prcg subpoenaed
- Bd., comm'n, / adm. agency has investig. subpoena
- Srch warr.
- Arb. / panel
- Otherwise specif.'ed by law
- Permissive Discl.: §56.10)c
- Diagnosis of treatment
- Insurer, HMO, ee benefit plan 2 det. pay
- Peer rev. things
- Priv. / pub. body resp. 4 license / accredit
- HIV Status
- Can't Legally Discrim. Against HIV Pat.'s As
Long As Proper Control
- Can decline 2 treat if under normal proced.,
can't protect themselves
- Discl.'s: H & S §120980
- Results of HIV tests confid. & can't B discl'ed
w/o written auth.
- But only 2 piece of paper
- Exception 4 prov'er treating pat.
- Not apply 2 AIDS diagnosis
- HIV v. AIDS Reports
- Dr. must report AIDS as contag. disease but not
- Duty 2 Discl. 2 3rd Party
- Permissive Discl. of HIV
- To sex partn. / share needle w/o discl'ing exact
ID of pat. & dr. immunized from civil / crim. liab.
- Permissive Discl. of AIDS
- Notify if rsbly believed 2 B infected w/AIDS
- If dec. 2 notify, dr. must disc. w/pat. of the
intent 2 notify V
- Duty 2 Warn
- To specif. ID'able V
- Discharge duty by
- Warn risk 2 others
- Warn how not 2 spread
Pat.'s Pers'al Autonomy Issues
- Must Have Consent 4 Anything, Otherwise Battery
- Punitive damage b/c intentional tort
- Unpermitted touching, even dif. proced. than
- Express v. Implied
- Express by oral / written
- Implied by axn / conduct
- Mental competence 2 understand nat. & conseq.
- Could have mental deficiency & still give
- Age of maj.
- Younger than 18 ok if emancipated / judge thinks
- ER Exception 2 Treat W/o Consent
- If pat. can't consent +
- No legal rep. available +
- No evid. that pat. wouldn't have not consented
- When imm. serv's req'ed 2 alleviate severe pain
/ imm. diagnosis +
- Treatment of med. condition which if not imm'ly
treated would lead 2 serious disability / death
- Immunity 4 Failing 2 Get Consent in ER
- Not incl. neg.
- Informed Consent
- Duty 2 Discl. Suff. Info.
- Enough so pat. has knowledge & info about
matters 2 give consent
- Only 4 complex proced. which med. staff det.'s
- Dr.'s duty, not hosp. & gen'ly delegated
- Req'ed Discl's
- Nat. of treatment being recommended
- Risk, complications, & expected benefits
of recommended treatment
- Known risk
- Experimental nat.
- Uncert. risks ass.'ed w/experimental proced.
- Pers'al int. of econ. / research
- Alt's 2 rec.'ed treatment, risk, complications,
& expected benefits
- Stand. / Scope of Discl.
- Materiality 2 pat.'s dec.
- What dr. knows / should've known material 2 pat.
- What rsbly prudent person would want 2 know 4
doing / not doing it
- Material can B something not commonly appreciated
- Written Informed Consent Req'ed 4
- Surgical proced.
- Cert. categ's of disease req. spec. informed
- Not Discl. Risk in Informed Consent When
- Pat. ask not B informed /
- Therapeutic priv. exception where discl. would
seriously harm than benefit pat.
- Rt. 2 Die
- Pat. competent, then make own choice
- Pat. incompetent, then
- Follow advance directive if exist
- Durable pwr of atty in health care
- Physician's decl. / directive
- Substituted jgmt if no advanced directive
- Competent Pat.'s
- Should B able 2 follow complicated dec.'s
- Issues of w/drawing food, water, / machinery
- Tests 2 det. competency
- Evid.'ing choice
- Rsbl outcome 2 see if pat. can reach rsbl outcome
- Choice based on rational rsn: focus on pat.'s
- Ability 2 understand where competent if manifest
ability 2 understand
- Actual understanding
- Incompetent Pat.'s + Advanced Directive
- Pat. Self Det. Act
- Hosp. must ask if advanced directive, but not
- If so, put in med. records
- If not, give info & make available
- Durable Pwr of Atty in Health Care: Pref'ed
- Pat. is princ. & desig. agent 2 make healthcare
dec. when incompetent
- Operative when princ. incompetent 4 indef. per.
- Agent can make almost all dec's princ. would've
if competent but no pwr over $
- Act on known desires which bind agents &
- If unclear from durable, then see other evid.
- If unknown / gen. wish, must act in best int.
- Consid. evid. & info of what's in best int.
- Benefit burden analysis
- Med. advice on prognosis of returning
- To exec., need W of 2 persons / notorized
- If res. of SNF
- One W has 2 B ombudsman +
- Notorary / W
- W can't B
- Anybody rel'ed 2 prov. healthcare
- Rel'ed by blood, marriage, adoption / entitled
- Agent can't B
- Treating healthcare prov'er / ee
- Operator of facility / where residing
- Verbally / written
- Competent & deemed competent unless prove
- Can B from conservator, not pat.
- Other state res's durables ok if valid in that
state / subst'ly = 2 CA
- Dr. protected legally
- Can presume durable valid w/o knowledge 2 contrary
- Not subj. 2 crim. / civil liab. if believe in
good faith, agent auth'ed 2 make dec. 2 princ. & dec. not
inconsistent w/known desires
- Immunity if refuse 2 w/draw life support
- Physician's Declaration
- Decl. stating not want life sustaining treatment
incl'ing food & water if perm'ly unconsc. / term'ly ill
- Term'al if incurable & irreversible condition
so that w/o life sustaining treatment, result in death in short
- Perm'ly unconsc. if incurable & irreversible
that w/in rsbl med. jgmt, causes irreversible coma / veg. state
- Competent pat.
- Two W's
- At least 1 not entitled 2 estate, will / law
- Can't B healthcare prov'er / ee
- If SNF res., ombudsman req'ed
- Valid unless revoked any X, any manner regardless
of mental / phys. condition
- Appt'ed by ct.
- If Durable before conservator, durable controls
- Broader discretion than durable agents
- May follow prev'ly expressed desires but not
oblg'ed unless signed valid advanced directive
- Incompetent + No Advanced Directive
- Substituted Jgmt Test
- What pat. would've wanted / done if capable &
- Not always best int.
- Subj. test where if have clear suff. evid. that
pat. not want 2 B kept alive, then ok 2 w/draw life support
- Limited obj. test
- Some subj. evid. of what pat. wanted +
- Dec. maker satisfied that burdens of pat.'s cont.'ed
life outweigh benefits of life
- Then can w/draw treatment
- Pure obj. test
- Net burden of treatment clearly outweigh pat.'s
benefit derived from life+
- Recurring unavoidable pain w/treatment so that
inhumane 2 cont. treatment
- Conservator's Discretion
- Can make informed dec. of best int. w/med. info
into acct. w/o ct. approval
- Legal Surrogate
- Not need 2 B ct. appt'ed conservator, but can
B family / close friend
- Closest available relative is surrogate unless
lack motive / competence
- If another close relative obj's 2 surrogate's
dec., then ethics committee triggered 2 get consensus
- Imp. Lib. Int. in Dying
- State needs persuasive int. 2 infringe
- Preserve life
- Int. in prevent suicide
- Avoid involvement of 3rd parties & precl'ing
use of arb., unfair, / undue influence
- Effect on ch., other family, & loved ones
- Protect integrity of med. profession
- Fear of adverse conseq.'s
This material is copyrighted by the author. Use of the material
for profit is strictly prohibited without the written permission
from the author.
May 6, 1997
Ms. Haeji Hong
Go Back to Law School Notes