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thelawsucks

Guest
What is the name of your state? California

I dont know who can help. But my case is similar to that Randall guy! My child went to a hospital and we never signed consent, they just tested my baby girl without our consent, we never even signed a general release because we were brought by ambulance. Although the ambulance never got a release either. When we refused treatment they said they would call Social Services, even though we just wanted a second opinion, before we had a lumbar puncture done. My Baby girl was sick but she wasn't an emergency or anything. Can someone please tell me what to do. Is this battery?
 


C

Consentlaw

Guest
Look here is good advice

The issue of informed consent is of great concern in emergency care. Several ethical and legal principles define the parameters of informed consent. The concept of autonomy provides the basis for informed consent as well as the basis for refusal of medical treatment. Although autonomy is an ethical concept, it also is one of the foundations of various legal principles including self-governance, liberty, rights, privacy, and individual choice.

US Supreme Court Justice Benjamin Cardozo stated, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body." The physician-patient relationship is a dynamic interaction. Traditionally, physicians paternalistically administered those treatments they considered best for patients. Historically, a patient could consent to treatment simply by lack of objections. The current interpretation of consent has evolved to require a more active role on behalf of the patient. The physician must disclose risks, benefits, and alternative treatments to the patient. Informed consent requires a competent patient who makes a voluntary decision based upon adequate information.

To obtain consent, the patient must be clinically and legally competent. In most states, the legal age of consent for medical treatment is 18 years. Parents or legal guardians normally are required to consent for the medical treatment of minors, although a few exceptions exist as follows:

The Emergency Medical Treatment and Active Labor Act (EMTALA) requires hospitals to provide an adequate medical screening examination to anyone (including minors) who presents to the ED, even if appropriate consent cannot be obtained. If no immediately life-threatening condition is identified, institute procedures to obtain consent for treatment. In many states, marriage or pregnancy often confers an emancipated status to minors, who then can consent to procedures and treatments. In the interest of a greater societal good, various conditions exist (depending upon the state) for which minors can consent to treatment. These conditions include treatment for (1) sexually transmitted diseases, (2) alcohol or drug abuse, (3) domestic or sexual abuse, and (4) mental health issues.

Minor parents of children also can consent to treatment for their children and themselves. Additionally, mature minors (ie, close to age of maturity) can consent, at times, to less invasive or less risky procedures if the physician feels the patient understands the concepts of consent.
Clinical competency can be defined as the ability to comprehend and rationally act upon information provided by a healthcare professional. Intoxication and active psychosis affect an individual's ability to give adequate consent. Carefully examine the patient's mental status and reasoning ability when trying to obtain consent. Furthermore, common law or other statutes may govern which patients can consent legally.

In addition to determining the patient's competency to consent to medical treatment, the physician must impart the appropriate information to obtain consent. In some states, the standard of disclosure is defined as what a reasonable physician in a similar situation would disclose; other states require disclosure of the risks and alternative treatment options that a reasonable patient would want to know before consenting to a proposed therapy. In some circumstances, physicians may invoke therapeutic privilege and do not have to disclose extremely rare risks or complications that, if disclosed to the patient, may unreasonably prejudice the patient's decision.
Distinctions are made among various types of consent.

General consent

When patients present to the ED, they typically sign a general consent during the registration process. General consent indicates that the patients are willing to undergo basic evaluation and treatment. Controversy exists regarding the definition of basic treatment. Few argue that taking vital signs or performing a routine physical examination requires the physician to obtain further consent from the patient.

Nonemergent specific consent
Obtain a more nonemergent specific consent for procedures and treatments that may be more invasive (eg, chest tube placement), have more risks (eg, conscious sedation vs general anesthesia), or may be considered experimental. Ideally, physician-patient discussion should be witnessed and written documentation of consent obtained. Discussion should include the following:
Specifics of the procedure (ie, why it is being performed, how it is performed)

Risks and benefits

Any alternative treatments
Emergency consent

In an emergency, attempt to obtain informed consent from the patient or from an appropriate surrogate decision maker. In certain situations, emergency consent is implied. In these instances, normal consent standards are not followed because immediate treatment may be required even before an opportunity to obtain consent is available. The assumption is made that the average, reasonable, competent patient would agree to standard treatment in an emergency if able to consent. An example of such a situation is a patient who suffered a pneumothorax and, as a result of decompensating vital signs, is unresponsive and unable to give consent. In the best interest of the patient, the physician should proceed with a tube thoracostomy rather than try to obtain consent.

Caveat to consent issues

Emergency or implied consent cannot always be applied simply because a patient presents to the ED. If a patient's condition is not immediately life threatening, consent must be obtained from the patient or the appropriate surrogate. For example, a patient who presents to the ED with an acute-onset headache and requires a workup for a possible subarachnoid hemorrhage does not automatically consent to a lumbar puncture simply because she or he is in the ED. If the patient is of sound mind and judgment and refuses to consent to the procedure, the physician cannot apply emergency consent and may not proceed.

The US Supreme Court has recognized that a "person has a constitutionally protected liberty interest in refusing unwanted medical treatment" even if refusal could result in death. The prudent physician tries to explore the reasons for refusing therapy. If the patient continues to decline treatment, document this discussion and refusal. This can be done on a "discharge against medical advice" form.

Although courts protect a patient's rights to refuse care, "preservation of life, prevention of suicide, maintenance of the ethical integrity of the medical profession, and protection of innocent third parties" also may be considered when evaluating a patient's wish to refuse treatment. Each case must be examined individually.

In discussions concerning the refusal of appropriate treatment, inform the patient of possible adverse outcomes resulting from inadequate treatment. Provide information regarding available treatment even to patients with terminal diseases who have advanced directives. Patients frequently reconsider treatment when informed of the possibility of disability or death. Additionally, patients often refuse to consent simply because they do not understand the proposed therapy completely. Encourage patients who refuse care to return should they change their minds.

If a parent's refusal of treatment seriously jeopardizes a child's well-being, physicians may consider taking temporary protective custody under child abuse laws, which vary from state to state. In general, parents cannot refuse life-saving therapy on religious or other grounds. Courts previously have decided in favor of the physician treating the minor. Time permitting, whenever needed medical care for a minor is refused, the responsible provider and institution should seek assistance from appropriate court authorities and ethics committees.
In providing medical care, the universal goal is to act in the best interest of the patient. A patient's best interest may be served by providing leading-edge medical treatment, or it may be served simply by honoring a patient's refusal of care. This goal is based on the principle of autonomy, which allows patients to decide what is best for them. Although complicated issues can arise when physicians and patients disagree, the best policy is to provide adequate information to the patient, allow time for ample discussion, and document the medical record meticulously.
In your case, if there was no emergency, a lumbar puncture requires a consent. So does a Foley Cathter, because they are both Invasive. So I would contact an attorney.
 
C

Consentlaw

Guest
If IIAL or anyone tell you anything different....

They just show there true ignorance. I am a real attorney and I have successfully protected the rights on thousands of victims of Medical Battery. Don't listen to those who say that just being at a ED means you consent. Its not true, nor will it even be allowed as an affirmative defense.
Legal advice is not something you get off a free forum,its something that is often learned from lawyers not screen names.
The ambulance concept proves that there was negligence to me, the ED probably assumed you signed consent with the Ambulance and therefore they probably didnt think it was necessary.
Hmmm. Interesting case. Private Message me with your contact info. I would like to talk to you about your case.
 
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ellencee

Senior Member
TLS and CL
There is no law or federal statute that requires a signing of general consent. I'm not an attorney but I am a Certified Legal Nurse Consultant and I do provide expert consultation and expert testimony and I am a frequent student of the legal aspects of delivering healthcare. You can dance around it all you want and spout all you want about medical battery, but it remains that when you call an ambulance to transport you or your child to the ER, you are requesting and consenting to receiving medical care/intervention.

Medical care is going to start with diagnostic techniques, progress to diagnosis and treatment while some treatment is going to start immediately on arrival of the ambulance or on arrival in the ER because to wait is to lose the opportunity to establish certain lifesaving procedures such as the provision of hydration/venous access and to secure a measurable method of urinary excretion. The latter may seem unnecessary to you and if it does, it simply underscores your lack of understanding of necessary emergent medical care.

A lumbar puncture is an invasive procedure of significant risks and pain and therefore requires INFORMED CONSENT, explained, documented, signed, witnessed and placed in the medical record--unless--as in the original poster's description of events, a lumbar puncture needs to be performed in an urgent situation and a) numbskull litigious parents want a freakin' second opinion even if their child dies from meningitis during the delay or because of the delay or b) the patient is physically or mentally unable to consent and no responsible party is available to give consent either written or verbally by phone.

In either situation a) or b), the healthcare providers have a duty to the patient to provide the necessary procedure without regard to informed consent.

My first specialty was Pediatrics and I was Head Nurse of the Pediatrics floor for years and I continue to have neonates and children as patients. During my 25+ years of professional RN practice, these facts about general consent and informed consent have never changed, though informed consent has expanded and remains legally unclarified as to whether or not each and every risk must be disclosed or if it is appropriate to list only the most common and most serious.

Medical battery is not the provision of potentially lifesaving, therefore critical intervention, in the absence of a documented, signed, witnessed informed consent and therefore does not apply to this post or to dear ole Randy's post.

EC
 
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rmet4nzkx

Senior Member
Cl is Randy's alterego/clone/troll, the op in this thread is also most likely a plant it even used the same stlye etc, and timing.
It still doesn't change the fact that Randy consented to have his son treated when he presented his child at the ER now if that infant walked or crawled into the ER because they were undsupervised that is a different story.
 
I don't know about Caly but in Kentucky when you ride by Ambulance they take your info and get consent on your ride to to hospital. They have a computer that you sign. That way they just tranfer everything over to the hospitals computer as sign in. If this is Randall why not just give all of this info on your first post. Since you left out an Ambulance ride out of it.
 

ellencee

Senior Member
now if that infant walked or crawled into the ER because they were undsupervised that is a different story.
Ha ha ha! :D RM! I didn't know you had that kind of humor! I love it!

EC
 

rmet4nzkx

Senior Member
ellencee said:
Ha ha ha! :D RM! I didn't know you had that kind of humor! I love it!

EC
Yeah, I like to keep 'um jumping! :D It would be funny except these people are out in the real world wrecking hovoc!
 
C

Consentlaw

Guest
some enlightenment

Diagnostic Testing
"Consent to invasive diagnostic testing should be analyzed as if it were consent to surgery. Many diagnostic tests are quite uncomfortable; and some, such as kidney biopsies, are more hazardous than minor surgery. Since many of these tests are performed by physicians who are either employees of the hospital or potential agents of the hospital, health professionals must ensure that written consent is obtained to prevent liability. The hospital may be liable for negligent actions of these physicians and may also be liable for injuries due to defective equipment including a civil tort of battery of person which is not covered by malpractice insurance...."

[citing] California Health Association Manual on Consent Chapter 2
Since you are such an expert on pediatrics maybe you own it, although it is a 400.00 journal.
Additionally BAJI, which is the instructions of a jury to Medical battery is this and you can keep it handy and print it out.

530. Medical Battery
A [insert type of medical practitioner] commits a battery if:
[He or she performs a medical procedure without the
patient’s consent.]

[The patient consents to one medical procedure, but the
[insert type of medical practitioner] performs a substantially
different medical procedure.]

[The patient consents to a medical procedure, but only on
the condition that something else happens, and the [insert
type of medical practitioner] proceeds even though that
condition does not happen.]

You are aware of what consent by proxy is right?
 
C

Consentlaw

Guest
further reading

Reading Rainbow here.

A general consent also includes privacy disclosures and the ability to bill insurance. Thats a whole other can of worms ellencee, obviously you never worked in risk management. These kind of cases usually just get settled because the hospital really screwed up. Dont believe me just a call a lawyer up and ask him, if a hospital doesnt get any documentation other than implied consent and consequently damages occurred, who do you think a jury is gonna believe, the hospital who screwed up in their own code of ethics and procedure or the child who was injured. Please, dont be ridiculous.
There is a case here, not an extremely valuable one, but there is a case. It will probably get settled for 50-60 thousand when the hospital realizes they have no signed consent to treatment.
 
C

Consentlaw

Guest
elincee I answered to your entire article

There is no law or federal statute that requires a signing of general consent.
" Yes there is but I am not gonna give you an education"

I'm not an attorney ( I also figured that out) but I am a Certified Legal Nurse Consultant ( Whats your educational background? ) and I do provide expert consultation and expert testimony ( Where Small Claims Court) and I am a frequent student of the legal aspects of delivering healthcare ( Where the Free Clinic). You can dance around (I am not dancing) it all you want and spout all you want about medical battery, but it remains that when you call an ambulance to transport you or your child to the ER, you are requesting and consenting to receiving medical care/intervention ( What if you just needed a ride or were unsure if you need treatment? Wow I didnt know ER departments and Ambulances were the same company!).

Medical care is going to start with diagnostic techniques ( Yeah anal probes, Invasive heart catheters), progress to diagnosis ( What if there isn't one?) and treatment while some treatment is going to start immediately on arrival of the ambulance or on arrival in the ER because to wait is to lose the opportunity to establish certain lifesaving ( What if there is no emergency condition) such as the provision of hydration/venous access and to secure a measurable method of urinary excretion ( Doesnt that require consent or can I go pull anyone's pants down and say its in the name of medical science). The latter may seem unnecessary to you and if it does, it simply underscores your lack of understanding of necessary emergent medical care ( no I think I understand it quite well).

A lumbar puncture is an invasive procedure (yeah so is a catheter go check your medical journal) of significant risks and pain and therefore requires INFORMED CONSENT, explained, documented, signed, witnessed and placed in the medical record--unless--as in the original poster's description of events, a lumbar puncture needs to be performed in an urgent situation ( Did she say that) and a) numbskull litigious parents want a freakin' second opinion even if their child dies from meningitis during the delay or because of the delay or b) the patient is physically or mentally unable to consent and no responsible party is available to give consent either written or verbally ( Wait a minute wasnt the parent there!) by phone.

In either situation a) or b), the healthcare providers have a duty to the patient to provide the necessary procedure without regard to informed consent.( Since when is informed consent general consent)

My first specialty was Pediatrics ( then you know you need consent from the parents) and I was Head Nurse of the Pediatrics floor for years ( Yeah where Iraq) and I continue to have neonates and children as patients. During my 25+ years of professional RN practice ( See I have nurses who would definately disagree with you), these facts about general consent and informed consent have never changed, though informed consent has expanded and remains legally unclarified ( its actually quite simple but you went the nursing route) as to whether or not each and every risk must be disclosed (California says full disclosure if someone is obviously unlearned) or if it is appropriate to list only the most common and most serious ( yeah that I agree with but disclosing something is required, silence is negligence).

Medical battery is not the provision of potentially lifesaving, therefore critical intervention ( Where are you getting this potentially life saving critical intervention? Was the patient unconscious or were the parents not there to consent) , in the absence of a documented, signed, witnessed informed consent and therefore does not apply to this post or to dear ole Randy's post ( yes it does for the all above forementioned reasons).
 
C

Consentlaw

Guest
I know so was I

When i read your post
Here is a real thought, do children have rights or are they just property?
 

rmet4nzkx

Senior Member
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"Cleaning your house while your kids are still growing is like shoveling the walk before it stops snowing." -- Phyllis Diller

"Having a family is like having a bowling alley installed in your brain." -Martin Mull.

"Laughter is like changing a baby's diaper. It doesn't permanently solve any problems, but it makes things more acceptable for a while" - Unknown

"I don't know why they say "you have a baby." The baby has you." -Gallagher

"Raising kids is part joy and part guerilla warfare." - Ed Asner

"People who say they sleep like babies usually don't have them". - Leo J. Burke

"I was cesarean born. You can't really tell, although whenever I leave a house, I go out through a window" -- Steven Wright

"Before I got married, I had six theories about bringing up children. Now I have six children and no theories." - John Wilmot

"First you have to teach a child to talk, then you have to teach it to be quiet." - Prochnow

"A truly appreciative child will break, lose, spoil, or fondle to death any really successful gift within a matter of minutes." - Russell Lynes

"Parents are the bones on which children cut their teeth." - Peter Ustinov

"When I was born, I was so surprised I couldn't talk for a year and a half." - Gracie Allen

"Father asked us what was God's noblest work. Anna said men, but I said babies. Men are often bad; babies never are." - Louisa May Alcott

"It is not economical to go to bed early to save the candles if the result is twins." - Chinese Proverb

"A baby is an alimentary canal with a loud voice at one end a no responsibility at the other." - Ronald Reagan

"A child is a curly, dimpled lunatic." - Ralph Waldo Emerson

"Any child can tell you that the sole purpose of a middle name is so he can tell when he's in trouble." - Dennis Fakes

"Even when freshly washed and relieved of all obvious confections, children tend to be sticky." - Fran Lebowitz

"A three year old child is a being who gets almost as much fun out of a fifty-six dollar set of swings as it does out of finding a small green worm." -Bill Vaughan

"Children are supposed to help hold a marriage together. They do this in a number of ways. For instance, they demand so much attention that a husband and wife, concentrating on their children, fail to notice each other's faults." - Richard Armour

"If your baby is "beautiful and perfect, never cries or fusses, sleeps on schedule and burps on demand, an angel all the time," you're the grandma." - Theresa Bloomingdale

"No animal is so inexhaustible as an excited infant." -Amy Leslie

"If men bore children, there would only be one born in each family."

"You can learn many things from children. How much patience you have, for instance." - Franklin P. Jones

"Families with babies and families without are so sorry for each other." - Ed Howe

"Giving birth is like taking your lower lip and forcing it over your head." - Carol Burnett

"My obstetrician was so dumb that when I gave birth he forgot to cut the cord. For a year that kid followed me everywhere. It was like having a dog on a leash." -Joan Rivers

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"The best way to keep children at home is to make the home atmosphere pleasant - and let the air out of their tires." - Dorothy Parker

"Human beings are the only creatures on Earth that allow their children to come back home." - Bill Cosby

"You know your children are growing up when they stop asking you where they came from and refuse to tell you where they're going." - P.J. O'Rourke

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