Patient Autonomy and Informed Consent
Begin reading at Law, p 82 (we covered the ethical issues
in the Ethics text).
Bottom of p 82 the book talks about these torts: “assault,
battery, false imprisonment, negligence with regard to
lack of informed consent.”
For a list of differences between torts and crimes:
http://www.earlham.edu/~peters/courses/ct/crimtort.htm
Definitions:
Tort: a civil wrong for which the law provides a
remedy
Tort Action: plaintiff filing to recover damages
for personal injury or property damage
occurring from negligent conduct or
intentional misconduct
For imaging professionals the following torts
are most common:
Intentional Tort:




assault
battery
false imprisonment
Defamation (for Ch. 5, on truthfulness)
Unintentional Tort:
 Negligence (covered in Ch. 2)
 failure to obtain informed consent
 breach of patient confidentiality (covered in Ch. 2)
Intentional Torts:
Assault:
 deliberate act which
 threatens harm to another person without consent, and
 victim perceives other’s ability to carry out threat
Battery:
 touching to which the other has not consented
 even if the touching may benefit other
Intentional Torts:
 Assault and Battery are a concern especially when
restraints are used in imaging
 The book uses the term medical immobilization to
distinguish restraint with and without consent
 Medical immobilization without consent is
restraint
 When restraint is required, imaging professionals
should be able to justify it using the following 4
criteria:
Legal Criteria for Use of Restraint (from Box 4.4,
top of p84):
1. Touching or restraining to which the patient has not
consented is needed to protect the patient, health care
members, or the property of others
2. The restraint used is the least intrusive method possible
3. Regular reassessment of the need to restrain occurs
4. The restraint is discontinued as soon as practicable
When dealing with children, it would be important to make
parents aware that you are guided by those criteria
Law, p84:
False Imprisonment = Unlawful confinement
within a fixed area
 Confined must be aware of confinement
 Confined must be harmed by confinement
The book says
“Even if the health care provider does not intend harm, these
allegations can be made if the patient perceives the acts to be done
with the intent of harm.” – Law p 84
Note that intent is not part of the definition of false
imprisonment above, and so the quotation above
doesn’t make sense. Is intent to harm part of false
imprisonment or not? Google ‘false imprisonment’;
law sites don’t mention it in their definitions.
Informed Consent:
Case law governing informed consent was
established in these 2 cases:
 1952, Salgo v Leland Stanford Jr. University Board of
Trustees
 1972, Canterbury v Spence
All 50 states now require informed consent
There are 2 exceptions to the requirement for
informed consent:
 Emergencies
 Therapeutic Privilege
In general, to prove lack of informed consent, a plaintiff
must show:
1. A material risk existed that was unknown to the patient
2. The risk was not disclosed
3. Disclosure would have led a reasonable patient to reject treatment or
seek other course
4. Patient was injured by lack of disclosure
Note that the details of your particular hospital or clinic
standard of care, local statutes, professional standards,
etc., will play a role in determining disclosure
requirements
Informed Consent Law:
2 points:
 Nearly all states impose the duty of obtaining
informed consent on physicians only
 Some have tried to impose the duty on hospitals
The book says imposing the duty to obtain informed
consent on hospitals has met with “limited
success”; you should find out who has that duty
when you find a job
Read p 86,
Pauscher v Iowa Methodist Medical Center
(for an example of an informed consent action
that failed)
Keel v St. Elizabeth Medical Center
(for an action that succeeded)
Review: Elements of Informed
Consent (p 87 Box 4-5)
Note the final element:
Consent to treat a minor patient is
usually given by a parent or
guardian, but if the minor patient
is at least 7 years old, he or she
should be included in the
decision-making process
That introduces the question of
how to approach children
On p 88, second paragraph, the book notes 2
concepts the American Academy of Pediatrics
recognizes regarding children:
 In most cases physicians have a moral and legal
duty to obtain parental permission to treat a minor
 In the case of emancipated minors (age 14 to 18,
legally not living with parent or guardian) or
mature minors with adequate decision-making
capacity, consent should be obtained directly from
patient