Updated: 9/18/2019

Legal Principles

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Introduction
  • The following principles are intended to be applied only to a variety of individual situations you may face on the USMLE
Capacity, Competence, and Consent
  • Capacity vs competence 
    • capacity is a medical term
    • competence is a legal term
  • Competent patients have the right to refuse medical information and medical treatment(s)
    • a feeding tube is a medical treatment
    • a competent person can refuse lifesaving hydration or nutrition 
  • Assume that the patient is competent unless
    • history of suicide attempt
    • psychotic
    • patient cannot communicate
  • Obtain informed consent
    • patient must understand 
      • risks
      • benefits
      • alternatives
        • including no treatment
    • patient must agree with plan of care without coercion
    • exceptions
      • emergencies
      • waiver by patient
      • patient lacks decision-making capacity
      • therapeutic privilege
        • physician deprives an unconscious or confused patient of his autonomy in order to protect the patient's health (paternalism)
    • note that written consent can be revoked orally at any time
    • components of informed consent include:
      • patient makes and communicates a choice
      • patient is informed
        • information has not been withheld from the patient
      • decision remains stable over time
      • decision is consistent with patient's values and goals
      • decision is not result of delusions or hallucinations
      • consent implied in emergency situations without the healthcare proxy and patient unresponsive/confused 
    • consent from a patient's spouse is not required treatment of a patient with capacity
End-of-Life Issues
  • If the patient cannot make decisions, surrogate decision makers must use the following criteria:
    • subjective standard (advance directive of patient)
      • living will = patient provides specific instructions to withhold or withdraw life-sustaining treatment
    • substituted judgment (what would the patient want)
      • durable power of attorney = patient designates healthcare proxy to make decisions
      • supersedes living will if both exist
    • "best interests" of the patient
    • when no living will or durable power of attorney exists, the clinician is responsible for determining an appropriate surrogate decision maker from available family members
      • the priority of next-of-kin for surrogate decision making is as follows:
        • legal guardian appointed by a court
        • spouse
        • adult children (> 18 yrs)
        • parents
        • adult siblings 
        • grandparents/grandchildren
        • friend of the patient
  • Euthanasia
    • passively allowing patient to die is acceptable
      • but do everything you can to relieve patient's suffering
    • active killing of the patient is not acceptable
  • when treatment should stop
    • physician thinks treatment is futile but family insists on treatment
      • continue treatment
    • after declaraion of brain death but family insists on treatment
      • stop treatment
Confidentiality
  • Confidentiality between physician and patient is generally absolute  
    • exceptions
      • suspicion of child/elder abuse
      • gunshot or stabbing injuries must be reported to the police
      • communicable disease must be reported
      • the patient is a harm to others or self
        • tarasoff decision 
      • no alternative means exists to warn others
      • patient waves right to privacy
        • e.g., for insurance purposes
Minors
  • Minors cannot give informed consent unless emancipated through:
    • marriage
    • a parent
    • military service
    • living alone
  • A minor's refusal of treatment can be overruled by a parent
  • Parents cannot withhold life- or limb-saving treatment from their children, but can refuse other treatments
  • Examples
    • 17-year-old girl whose parents cannot be contacted
      • physician may treat a threat to health under in locum parentis
    • 17-year-old girl living on her own
      • patient can choose whether or not to give consent
    • 17-year-old girl who is requests birth control
      • provide access even in absence of parental consent
    • 16-year-old girl refuses but mother consents
      • treat
    • 16-year-old girl consents but mother refuses
      • do not treat
Other Principles
  • Avoid going to court
  • Use trained medical interpreters when possible
  • Committed mentally ill patients retain their rights
  • Never abandon a patient
    • transferring a patient to another physician's care is rarely (if ever) a correct answer on the USMLE
    • If a treatment (such as abortion, birth control, etc) is against a physician's personal beliefs - that physician does not have to provide that treatment; however, they are responsible for referring their patient to a provider who is willing and able to provide such care 
  • Disclose all errors, regardless of harm
    • consulting risk management alone is rarely (if ever) a correct answer on USMLE
Child and Elder Abuse
  • If suspected abuse is occurring, physicians are mandated reporters and MUST report to Child Protective Services or Adult Protective Services 
 

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Questions (6)
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(M2.OMB.18.1) An 86-year-old man is admitted to the hospital for management of pneumonia. His hospital course has been relatively uneventful, and he is progressing well. On morning rounds nearing the end of the patient's hospital stay, the patient's cousin finally arrives to the hospital for the first time after not being present for most of the patient's hospitalization. He asks about the patient's prognosis and potential future discharge date as he is the primary caretaker of the patient and needs to plan for his arrival home. The patient is doing well and can likely be discharged in the next few days. Which of the following is the most appropriate course of action? Tested Concept

QID: 210457
1

Bring the cousin to the room and ask the patient if it is acceptable to disclose his course

17%

(1/6)

2

Bring the cousin to the room and explain the plan to both the patient and cousin

17%

(1/6)

3

Explain that you cannot discuss the patient's care at this time

0%

(0/6)

4

Explain the plan to discharge the patient in the next few days

0%

(0/6)

5

Tell the cousin that you do not know the patient's course well

50%

(3/6)

M 6 B

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