HCAD LAW Final

HCAD LAW Final

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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
A verbal agreement or written document Express Consent
Some act of silence, which raises a presumption that consent has been authorized. Implied Consent
Touching of another without authorization to do so could be considered Battery
Legal doctrine that provides that a patient has the right to know the potential risks, benefits, and alternatives of a proposed procedure. Informed Consent
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 Informed Consent
The physician has a legal, ethical, and moral duty to respect patient autonomy and to provide only such medical care as authorized by the patient. Informed Consent
What spawned the doctrine of informed consent? The right to control the integrity of one's own body.
What is required to establish whether a reasonable physician in the community would make the pertinent disclosures under the same or similar circumstances? Expert Testimony
A consent is not valid if.. The patient did not understand the operation to be preformed, its seriousness, the disease or incapacity, and possible results.
In most cases they have no duty to advise a patient as to a particular procedure to be employed; advise the patient as to the risks, benefits, and alternative to the recommended procedure; or obtain a patient's informed consent. Nurses
In instances where a procedure is routine, a nurse could be liable for.. Failing to inform the patient as to the risks of a CT scan with contrast.
Would be liable for the nurses negligence under the doctrine of respondeat superior The employer
If the failure of informed consent is so apparent that laypersons may easily recognize it or infer it from evidence within the realm of common knowledge Expert testimony need not be established
If patient's choice is not consistent with the physician's recommendations, the physician has the option to Withdrawal from the case
What tests do courts utilize 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. Objective Test and Subjective Test
Plantiff must prove that a "reasonable person" would not have undergone the procedure if he or she had been properly informed Objective Test
The court examines whether the "individual patient" would have chosen the procedure if he or she had been fully informed. Subjective Test
The finder of fact may take into account the characteristics of the plaintiff, including idiosyncrasies, fears, age, medical condition, and religious beliefs Applying the objective standard
Affords the ease of applying a uniform standard Objective standard
Maintains the flexibility of allowing the finder of fact to make appropriate adjustments to accommodate the individual characteristics and idiosyncrasies of an individual patient. Objective standard
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 standard to be applied in informed consent
The plaintiff's testimony is only one factor when determining the issue of informed consent. The issue is whether a reasonable patient, not a particular patient, would have chosen a different course of treatment Objective analysis
Relies solely on the credibility of the patient's testimony. Subjective standard
Patient in subjective standard must. Testify and prove 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.
How does the subjective standard effect the physician? Potentially places the physician in jeopardy of the patient's hindsight and bitterness.
A patient is considered to be competent to make medical decisions regarding hie or her care, unless.. A court determines otherwise
Clinical assessment of decision-making capacity includes the patient's ability to:
Is as binding as written consent, for there is, in general, no legal requirement that a patient's consent be in writing. Verbal consent
This type of consent is more difficult to corroborate Oral consent
Is preferred over oral consent Written consent
Provides evidence of a patients wishes Written consent
Because the function of a written consent form is to preserve evidence of informed consent. What should be incorporated in a consent form? The nature of the treatment, the risks, the benefits, and the consequences
Elements of a consent form: 1) Injury or illness2) Procedure consenting to3) Purpose of treatment4) Risks and consequences of treatment5) Probability of success6) Alternative treatments7) Risks of no treatment8) Acknowledgment of understanding9) Signature & date
Presumed when immediate action is required to prevent death or permanent impairment of a patient's health. Implied Consent
An emergency in most states eliminates the need for consent. Statutory consent
Periodically necessary to grant consent on an emergency basis when a court is not in session. Judge should be contacted only after alternative methods have been exhausted and the matter cannot wait. Judicial consent
A _____ adult patient's wishes concerning his or her person may not be disregar Competent
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. Guardian
When is guardianship necessary? 1) the patient is incapable of managing or administrating private affairs because of physical or mental disabilities 2) under the age of majority
Granted by the courts if it is determined that such is necessary for the well-being of the patient. Temporary guardianship
Parental consent is not necessary when.. The minor is marries or otherwise emancipated
Many states have recognized that parental consent is not necessary for what conditions.. Pregnancy, venereal disease, and drug dependency
Why do states not require parental consent in pregnancy, venereal disease, and drug dependency? The minor is not likely to seek medical assistance when parental consent is demanded
Guarantees that no person shall be deprived of life, liberty or property for arbitrary reasons Substantive due process
Protects those liberty interest that are deemed fundamental Due process clause of the fourteenth amendment
Calibrates the level of scrutiny in each case to match the particular degree of intrusion upon the parents' interest Reasonable test
The ability to consent to treatment is a question of Fact
The most frequently cited conditions indicative of incompetence are Mental illness, mental retardation, senility, physical incapacity, and chronic alcohol and drug abuse
Authorizes school officials, teachers, and camp counselors to act on the parents behalf or legal guardian's behalf when seeking emergency care for injured students or campers Limited power of attorney
Disclosure and consent forms are usually broad in nature
A patient's right to make decisions regarding his own health care is addressed in the Patient Self-Determination Act of 1990
Provides that each person has a right under state las to make decisions concerning his or her medical care, including the right to accept or refuse medical or surgical treatment Patient Self-Determination Act of 1990
What is involved in a balancing test Courts balance state interest 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
Supreme Court gave strength to a woman's right to privacy in the context of matters relating to her own body, including how a pregnancy would end. Roe v Wade
U.S. Supreme Court held that the Texas penal abortion law unconstitutional and violated the Due Process Clause of the Fourteenth Amendment Roe v Wade
The decision to undergo an abortion procedure is between the woman and her physician First trimester
The state may regulate the medical conditions under which the abortion procedure is performed Second trimester
The state has acquired a compelling interest in the product of conception, which would override the woman's right to privacy and justify stringent regulation even to the extent of prohibiting abortions Third trimester
The state may prohibit all abortions except those deemed necessary to protect maternal life or health Third Trimester
The state I'm promoting its interest in the potentiality of human life, may, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgement for the preservation of the life or health of the mother Second trimester
States may seek to protect a fetus that a physician has determined could survive outside the womb, to be constitutional.. Must allow the attending physician the room that he or she needs to make the best medical judgement
In regards to abortion counseling states cannot 1) mandate what information physicians give abortion patients2) Require that abortions for women more than 3 months pregnant be performed in a hospital
A physician to notify the parent of a minor prior to performing an abortion upon her violates the rights of the minor Parental Notification
U.S. Congress limits the types of medically necessary abortions for which federal funds may be spent under the Medicaid program Hyde Amendment
Opened the door to state statutory provisions limiting the funding of abortions Hyde Amendment
Advances in medical technology have resulted in the power to.. 1) prolong a productive life2) delay inevitable death
In regards to right-to-die the Supreme Court held.. The right-to-die should be decided pursuant to state law, subject to a due=process liberty interest, and in keeping with sate constitutional law
The Patient Self-Determination Act of 1990
The mercy killing of the hopelessly ill, injured, or incapacitated Euthanasia
Intentional commission of an act, such as giving a patient a lethal drug that results in death Active euthanasia
Life-saving treatment is withheld, allowing the patient diagnosed as terminal to die a natural death Passive euthanasia
Allows physicians to prescribe but not administer lethal drugs to the requester who must be terminally ill with fewer than 6 months to live The Oregon Death with Dignity Act
Instructions given by individuals specifying what actions they want taken Advance directives for health care
Living Will
Living Will
Healthcare Proxy
Legal device that permits one principle to give to another attorney-in-fact the authority to act on the principle's behalf Power of attorney
Legal mechanism by which the court declares a person incompetent and appoints a guardian Guardianship
Form of surrogate decision-making were the surrogate attempts to establish with decision the patient would have made if that patient were competent Substituted judgement
Decision not to initiate treatment or medical intervention for the patient Withholding and withdrawal of treatment
Given by a physician, indicate that in the event of a cardiac or respiratory arrest, no resuscitative measures should be used to revive the patient Do-not-resuscitate (DNR)
Conducted to ascertain the cause of a person's death Autopsy
Oversees and directs Public Health Service research integrity activities on behalf of the Secretary of Health and Human Services with exceptions to the FDA Office of Research Integrity
Responsible for reviewing, monitoring, and approving clinical protocols for investigations of drugs and medical devices involving human subjects Institutional Review Board
Legal document that describes treatment wishes should the patient become incapacitated Living will
Allows a person to inform wishes regarding life-support Living will
Legal document that allows a person to appoint an agent to make decisions Healthcare proxy
The study of inheritance as it occurs in human beings Human genetics
Genes or DNA sequences with a known location on a chromosome that can be used to identify cells and diseases Genetic markers
Prohibits discrimination on the basis of genetic information with respect to the availability of health insurance and employment Genetic information Nondiscrimination Act (GINA)
Involves the use of embryonic stem cells to create organs and various body tissue Stem cell research
Rights of patients to make their own healthcare decisions The Patient Self-Determination Act of 1990

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