Nurse Gave Vaccine Without Asking

[cbg]

Um, has anyone checked the posting hx?

Please do. It's quite entertaining.

 

[Antigone*]

Um, has anyone checked the posting hx?

Please do. It's quite entertaining.

He reminds me of Kingcuppie

Oh dang I invoked the name of another FAVI Society member. Dang!!!

 

[tranquility]

I have never heard of a hospital requiring the patient to sign a permission form each time they administer medication.

This could be both malpractice (lack of informed consent) and battery. The intentional harmful or offensive touching of another without consent or privilege. The ONLY issue here (besides the damage issue) is if there was consent. Consent does not have to be a signed form. It can be implied. For instance, you're in a long line of people getting flu shots and when you get to the front, you roll up your sleeve. Accepting the facts given, the hospital is EXTREMELY lucky there was not a serious reaction. Otherwise the lawsuit they would surely lose might result in a large payout. Sheesh people, just because you think the OP is an idiot does not mean others can inject what they want into their (friend's) bodies.

 

[justalayman]

Sheesh people, just because you think the OP is an idiot does not mean others can inject what they want into their (friend's) bodies.

It's not that I disagree with you in principle Tranq. It's just that the situation is not likely to be battery because the patient likely signed to be treated as needed during his intake. There's nothing wrong with demanding to know what they are shooting into your body and if you object, prevent it. The problem is that the guy has most likely already approved treatment as needed.

 

[tranquility]

One cannot have "informed consent" with some general consent form signed on admission.
California Code of Regulations, Title 22, Section 72528

(g) A general consent provision in a contract for admission shall only encompass consent for routine nursing care or emergency care. Routine nursing care, as used in this section, means a treatment or procedure that does not require informed consent as specified in Section 72528(b)(1) through (6) or that is determined by the licensed healthcare practitioner acting within the scope of his or her professional licensure not to require the disclosure of information material to the individual patient. Routine nursing care includes, but is not limited to, care that does not require the order of a licensed healthcare practitioner acting within the scope of his or her professional licensure. This section does not preclude the use of informed consent forms for any specific treatment or procedure at the time of admission or at any other time. All consent provisions or forms shall indicate that the patient or incapacitated patient�s representative may revoke his or her consent at any time.

See also:
Wolfe v. United States, 604 F. Supp. 726 (CA)
Petty v. United States, 740 F. 2d 1428 (8th cir.)

 

[justalayman]

So, you are saying every hospital in California is breaking the law if they do not obtain specific consent for anything that isn't routine care?

I guess that patient laying there in pain that the doc just ordered pain meds better get his writing pen out so he can sign a consent to treat form.

Need a different med because the one they have been giving isn't effective; get out the pen.

adding a med to that drip in your arm: get out the pen

Something about that law just isn't making sense. I know of no situation where a patient gives specific intent for treatment, per action, when in a hospital.

 

[tranquility]

I guess that patient laying there in pain that the doc just ordered pain meds better get his writing pen out so he can sign a consent to treat form.

I would say a person complaining of pain and who asked for pain medication and the nurse came in and gave it to him, gave implied consent.

Not all consent need be in writing. But, in the case of vaccines, it almost always is.

Info edit:

1302. Consent Explained

A plaintiff may express consent by words or acts that are reasonably understood by another person as consent.

A plaintiff may also express consent by silence or inaction if a reasonable person would understand that the silence or inaction intended to indicate consent.
Directions for Use

See CACI No. 1303, Invalid Consent, if there is an issue concerning the validity of plaintiff's consent.
Sources and Authority

Restatement Second of Torts, section 892 provides: (1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.

(2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

Civil Code section 3515 provides: "He who consents to an act is not wronged by it."

"The element of lack of consent to the particular contact is an essential element of battery." (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 [198 Cal.Rptr. 249].)

"Consent to an act, otherwise a battery, normally vitiates the wrong." (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 375 [193 Cal.Rptr. 422].)

"As a general rule, one who consents to a touching cannot recover in an action for battery. . . . However, it is well-recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act." (Ashcraft v. King (1991) 228 Cal.App.3d 604, 609-610 [278 Cal.Rptr. 900].)

Ahh, the classics edit:
My previous example of:

For instance, you're in a long line of people getting flu shots and when you get to the front, you roll up your sleeve.

was not pulled from my neither regions. It is from the classic case regarding consent.

O'Brien v. Cunard S.S. Co.
Supreme Judicial Court of Massachusetts, 1891
154 Mass. 272, 28 N.E. 266

A summary can be found at:
http://lawschool.courtroomview.com/acf_cases/9961-o-brien-v-cunard-s-s-co-


Oh my goodness a whole article on the topic edit:
"Informed Consent to Immunization: The Risks and
Benefits of Individual Autonomy"

http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2394&context=californialawreview

 

[justalayman]

tranquility;3091046]I would say a person complaining of pain and who asked for pain medication and the nurse came in and gave it to him, gave implied consent.

but is that what the nurse is giving him? It could be a DNA altering injection turning him into a lizard man like GW Bush is reputed to be. After all, you know how those sneaky government folks trick you into accepting drugs you don't really want.

Ahh, the classics edit:
My previous example of:
was not pulled from my neither regions. It is from the classic case regarding consent.

ya mean kind of like this:

When he was in the hospital a nurse came and gave him the flue vaccine without even asking or telling him what it was, until my friend had asked about it. But it was too late. The needle was already in his arm

so, the nurse comes in, asks the patient to bare his rear or upper arm, swabs the area with antiseptic, all the while this needle is setting on the tray, and the patient says nothing. Doesn't ask what that is for. No way that can be considered implied consent, right? It's not like they dart the patients from across the room (although I think that would lend an air of fun to the job that might help retain employees)

 

[tranquility]

ya mean kind of like this:

I guess you didn't read the case I supplied. No, not like that.

 

[ecmst12]

Signed written informed consent is NOT required for a flu shot. In fact, if you are in the hospital and the doctor recommends that you get one due to risk, they will make you sign a paper if you REFUSE.

The problem with the facts as given here, tranq, is that there is no way in heck that they actually occurred as stated. And the consent to be treated when he was admitted to the hospital would cover the flu shot. And if he allowed the nurse to come in, verify his name and birthday, scan his bracelet, draw up the shot, and start injecting it into his arm without any objection from the patient, that would certainly be enough "implied consent" to clear the nurse/hospital of any wrongdoing. Objecting after the fact is not the same as refusing ahead of time. It's just not possible for the nurse to have snuck into his room and stuck the needle in his arm before he even knew what was happening, even if she didn't explicitly explain what she was doing before she started (which I also doubt). There are too many steps that you have to go through before you administer a medication for it to happen as described. And since OP was not even THERE, we have absolutely no reason to trust his word on it.

There are plenty of procedures that WOULD require a separate written consent and wouldn't be covered by the admission consent. But not a vaccine.

 

[justalayman]

I guess you didn't read the case I supplied. No, not like that.

No, I didn't but I will, I promise.



but in the interim; what you are suggesting is that a patient cannot be given any medication unless there is some form of request for consent, even if it is in the generally accepted realm of treatment for the malady the patient is being treated for. That would mean every time an antibiotic is administered or just about any other med the patient didn't specifically request, there would have to be some specific consent given. I'm having a real problem with that.

 

[tranquility]

The problem with the facts as given here, tranq, is that there is no way in heck that they actually occurred as stated

Unless they committed a tort against the person.

And the consent to be treated when he was admitted to the hospital would cover the flu shot.

No, it wouldn't. Please provide anything that would indicate this. I've supplied tons, including a specific statute, that would indicate differently.

And if he allowed the nurse to come in, verify his name and birthday, scan his bracelet, draw up the shot, and start injecting it into his arm without any objection from the patient, that would certainly be enough "implied consent" to clear the nurse/hospital of any wrongdoing.

Again, no.

California Civil Jury Instructions (CACI)

532. Informed Consent - Definition

A patient's consent to a medical procedure must be "informed." A patient gives an "informed consent" only after the [insert type of medical practitioner] has fully explained the proposed treatment or procedure.

A [insert type of medical practitioner] must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand. A [insert type of medical practitioner] must give the patient as much information as [he/she] needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. A [insert type of medical practitioner] is not required to explain minor risks that are not likely to occur.
Directions for Use

This instruction should be read in conjunction with CACI No. 533, Failure to Obtain Informed Consent�Essential Factual Elements.

If the patient is a minor or is incapacitated, tailor the instruction accordingly.

Also, see CACI No. 531, Consent on Behalf of Another.
Sources and Authority

A physician is required to disclose "all information relevant to a meaningful decisional process." (Cobbs v. Grant (1972) 8 Cal.3d 229, 242 [104 Cal.Rptr. 505, 502 P.2d 1].)

"When a doctor recommends a particular procedure then he or she must disclose to the patient all material information necessary to the decision to undergo the procedure, including a reasonable explanation of the procedure, its likelihood of success, the risks involved in ccepting or rejecting the proposed procedure, and any other information a skilled practitioner in good standing would disclose to the patient under the same or similar circumstances." (Mathis v. Morrissey (1992) 11 Cal.App.4th 332, 343 [13 Cal.Rptr.2d 819].)

"A physician has a duty to inform a patient in lay terms of the dangers inherently and potentially involved in a proposed treatment." (McKinney v. Nash (1981) 120 Cal.App.3d 428, 440 [174 Cal.Rptr. 642].)

Courts have observed that Cobbs created a two-part test for disclosure. "First, a physician must disclose to the patient the potential of death, serious harm, and other complications associated with a proposed procedure." (Daum v. SpineCare Medical Group, Inc. (1997) 52 Cal.App.4th 1285, 1301 [61 Cal.Rptr.2d 260].) "Second, 'eyond the foregoing minimal disclosure, a doctor must also reveal to his patient such additional information as a skilled practitioner of good standing would provide under similar circumstances.' " (Id. at p. 1302, citation omitted.) The doctor has no duty to discuss minor risks inherent in common procedures when it is common knowledge that such risks are of very low incidence. (Cobbs, supra, 8 Cal.3d at p. 244.)

The courts have defined "material information" as follows: "Material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject the recommended medical procedure. To be material, a fact must also be one which is not commonly appreciated. If the physician knows or should know of a patient's unique concerns or lack of familiarity with medical procedures, this may expand the scope of required disclosure." (Truman v. Thomas (1980) 27 Cal.3d 285, 291 [165 Cal.Rptr. 308, 611 P.2d 902], internal citations omitted.)

"Obviously involved in the equation of materiality are countervailing factors of the seriousness and remoteness of the dangers involved in the medical procedure as well as the risks of a decision not to undergo the procedure." (McKinney, supra, 120 Cal.App.3d at p. 441.)

Expert testimony is not required to establish the duty to disclose the potential of death, serious harm, and other complications. (Cobbs, supra, 8 Cal.3d at p. 244.) Expert testimony is admissible to show what other information a skilled practitioner would have given under the circumstances. (Arato v. Avedon (1993) 5 Cal.4th 1172, 1191-1192 [23 Cal.Rptr.2d 13, 858 P.2d 598].)

A physician must also disclose personal interests unrelated to the patient's health, whether research or economic, that may affect his or er medical judgment. (Moore v. Regents of Univ. of California (1990) 51 Cal.3d 120, 129-132 [271 Cal.Rptr. 146, 793 P.2d 479], cert. denied, 499 U.S. 936 (1991).)

Appellate courts have rejected a general duty of disclosure concerning a treatment or procedure a physician does not recommend. However, in some cases, "there may be evidence that would support the conclusion that a doctor should have disclosed information concerning a nonrecommended procedure." (Vandi v. Permanente Medical Group, Inc. (1992) 7 Cal.App.4th 1064, 1071 [9 Cal.Rptr.2d 463].)
Secondary Sources

5 Witkin, Summary of California Law (9th ed. 1988) Torts, �� 360-361, pp. 446-449

3 Levy et al., California Torts, Ch. 31, Liability of Physicians and Other Medical Practitioners (Matthew Bender)

California Tort Guide (Cont.Ed.Bar 1996) � 9.11

6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, � 58.14 (Matthew Bender)

36 California Forms of Pleading and Practice, Ch. 414, Physicians and Other Medical Personnel (Matthew Bender)

2 California Points and Authorities, Ch. 21, Assault and Battery (Matthew Bender)

17 California Points and Authorities, Ch. 175, Physicians and Surgeons (Matthew Bender)

33 California Legal Forms, Ch. 104, Health Care Transactions, Consents, and Directives, � 104.11 (Matthew Bender)

(Revised December 2005)

 

[ecmst12]

Funny, unless I'm reading it wrong, in the case you posted, the plaintiff's claims that she did not consent despite standing in line and rolling up her sleeve for the shot, were REJECTED.

I've given several vaccinations and no special paperwork was required. Patients are provided with documentation/information about all the medicines they receive in the hospital, most of them don't even look at it, but they get it. In a hospital setting, the doctor does NOT need to go into the room and specifically outline all the risks and benefits prior to a vaccine. If the patient requests it, of course it would happen, but it's not standard procedure or required. There are procedures that DO require it - surgeries and invasive procedures. Not this.

There would also be exceptions for urgently needed treatments to be performed without specific consent, and the vaccine would fall into this category. Every minute he was in the hospital containing patients with the flu, he could have been exposed to it, and if he would have contracted it, he could have suffered permanent damage to his lungs or died. It was urgent that he receive the vaccine as soon as possible.

 

[tranquility]

Funny, unless I'm reading it wrong, in the case you posted, the plaintiff's claims that she did not consent despite standing in line and rolling up her sleeve for the shot, were REJECTED.

No, you read it right. Thus was born the theory of implied consent.

However, there was a requirement to be vaccinated to enter the U.S., there were notices to this put all over the ship in various languages and how the ship's surgeon did the vaccination customarily, two hundred woman assembled below and the discussion by the surgeon was about the vaccination including the importance and purpose, the particular plaintiff admitted from those conversations she was about to be vaccinated, she stood fifteen feet from the surgeon and witnessed others getting the vaccination, the women formed a line that passed by the surgeon, the surgeon would examine the women to see the vaccination mark, she had no mark and the surgeon said she should be vaccinated, she told him she had been vaccinated before and it didn't leave a mark, "that he then said nothing, that he should vaccinate her again", "that she held up her arm to be vaccinated; that no one touched her; that she did not tell him that she did not want to be vaccinated; and that she took the ticket which he gave her certifying that he had vaccinated her, and used it".

Compare and contrast:

When he was in the hospital a nurse came and gave him the flue vaccine without even asking or telling him what it was, until my friend had asked about it.

For more, see the legal review I mentioned at http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=2394&context=californialawreview . While the whole thing can be read as it discusses this specific issue, a good place would be on page 1295.

DISCLOSURE REQUIRED BY THE DOCTRINE
OF INFORMED CONSENT
A. The Legal Standard and the Medical Standard of Disclosure

Reading edit:

There would also be exceptions for urgently needed treatments to be performed without specific consent, and the vaccine would fall into this category. Every minute he was in the hospital containing patients with the flu, he could have been exposed to it, and if he would have contracted it, he could have suffered permanent damage to his lungs or died. It was urgent that he receive the vaccine as soon as possible.

"Urgent" is not the exception to informed consent, "emergency" is.

Patients are provided with documentation/information about all the medicines they receive in the hospital, most of them don't even look at it, but they get it.

See if you can guess why.

 

[ecmst12]

When he was in the hospital a nurse came and gave him the flue vaccine without even asking or telling him what it was, until my friend had asked about it.

It definitely did not happen as described here, I promise you. It is not even remotely possible.