Reference no: EM131207698

OVERVIEW:

You will be assigned to present and respond to various legal case studies four times throughout the semester. Like last week, the class will be divided into groups of seven or eight. Each of you will be assigned a specific case to present and discuss. The following guidelines outline the requirements of the assignment. In addition to your case discussion, you will also need to provide substantive and thoughtful responses to at least two (2) presentations by other members of your group.

The overall purpose of this activity is to:

1. Identify and analyze the relevant legal issues in the case.

2. Discuss and apply the legal concepts presented in your readings and lectures to the facts and issues of the case.

Presentation:

The following are elements that you should present or consider in your presentation:

- Identify the case by Case Name and legal citation.
- Provide a brief overview of the relevant facts of the case. Include enough information that your group can understand the facts and issues presented.
- Discuss how the court ruled and why?
- Your presentation should reflect application and understanding of legal theories discussed in lecture and course readings.
- Post your presentation by Thursday 8 AM
- Provide and cite at least one outside reference other than the text related to your topic.

Responses:

The following are elements that you should present or consider in your responses:

- Post thoughtful, substantive responses to other student' presentations.

- Responses should demonstrate an application and understanding of legal theories discussed in lecture and course readings.
- The questions posted at the end of each case study can provide help in focusing your discussion.
- Ongoing discussions should be reviewed and contributed to throughout the week.
- Provide and cite at least two outside references other than the text related to your topic.

Additional Tips:
- Because this is a "discussion" - your responses to other classmates is as critical as your own case presentation. Your comments should be more than "I agree" - if you do agree, then why? Or why not? The most interesting and valuable discussions occur when the participants feel comfortable expressing opposing views. Plus you will get more points for that! ? So be respectful, but don't hesitate to offer opposing opinions, even if it is just to stimulate a good debate!

- You will be tempted to discuss your opinion on the "appropriateness or lack there of" of medical or nursing care...When you do this, base your opinion and discussion on the appropriate legal theory or rule of law.

- Again, I do not expect a long detailed presentation - Remember this should be like a discussion you are having in class. As the presenter, you present the case, apply the relevant principles and your classmates respond to your presentation.

- Sometimes it is difficult to come up with an original thought after your colleagues have responded. The questions at the end of each case study are to facilitate discussion. In addition, you may provide examples of similar situations you have encountered, where the ethical or legal principles at issue were relevant to your experience. If you do offer examples, be sure you present the facts in terms that do not compromise confidentiality. Then apply the ethical or legal principles that are relevant to the situation.

- Notice that the word "brief" has been included in the criteria for posting legal case studies. That is so you know there is no expectation of spending "hours & hours" with the case studies.

- All postings should reflect clarity of writing, correct grammar and spelling.

References:

o You may use Pozgar and Garrett as references, and I would encourage you to do so, but they do not count towards the three additional references you need to post. Do make an effort to post your references using APA format, but I will not deduct points if your references are incorrectly formatted.

o Your secondary sources should reflect quality references. They can be from legal or medical professional web sites, law firms, journal articles, etc. Don't use Wikipedia, About.com and other sites of this type.

o A good source for references are the primary laws that relate to you topic. That may be nurse practice acts from the states involved in the litigation, other state or federal statutes and administrative codes.

o Please post the URL web link to references you refer that you found online so others may access the sites.

Focus 4 NS 808  - Legal case Auler v. Humanana Women's Hospitals see

Informed Consent

Auler v. Humana Women's Hospital, Ind. Ct. App. No. 29A02-9703-CV-191 (1997).

In this medical malpractice action for the implantation of a saline breast implant without the patient's consent, Nora Auler and husband Paul Auler appeal the summary judgment in favor of Humana's Women's Hospital-Indianapolis. The issue presented is whether the Hospital had or assumed a duty to secure the patient's informed consent for the implantation.

Facts and Procedural History
The facts show that Nora Auler was suffering cancer of the left breast, was admitted to the Hospital for removal of the breast and reconstructive surgery. Nora told the surgeon, Dr. Van Natta, that she did not want a breast implant. At the Hospital, Nora signed a general consent form entitled "Consent to Operation or Other Special Procedure." In small print at the top of the form was the following

"This form must be completed for each medical or surgical treatment over and above routine hospital services, diagnostic procedures and medical treatment. The explanation of the operation or special procedure must be given to the patient by the named physician since only he is competent to do so. The explanation must be given and signature must be obtained prior to preoperative sedation in order to assure informed consent. The explanation of procedures in statement 1 below must be shown in lay language . . . ."

Although the form did indicate that the patient was consenting to a "Left modified Radical Mastectomy", no where does the document reflect that a saline breast implant was contemplated. The body of the consent form says that "[t]he risks involved and the possibility of complications have been explained to me." Nora signed the form below the statement: "I have read and fully understand the above consent form." A registered nurse witnessed Nora's signature on the form. No other written consent form was obtained.

On the same day, Dr. Schmidt, surgically removed Nora's left breast. Thereafter, Dr. Van Natta, performed the reconstructive surgery, inserting a saline-filled breast implant. Nora was unaware of the implant until the next year when it was observed in a sonogram.

The Aulers filed a complaint with the Indiana Department of Insurance. They named the Hospital and Dr. Van Natta as defendants. In a unanimous decision, the Medical Review Panel concluded that the Hospital had complied with the appropriate standard of care. The Aulers then filed a medical malpractice complaint against both the Hospital and Dr. Van Natta in the trial court. The court ultimately granted a summary judgment for the hospital. The Aulers now appeal the case to this court.

Standard of Review
The appellate court noted that the purpose of summary judgment is to end litigation about which there can be no factual dispute and which may be determined as a matter of law. A genuine issue of material fact exists where facts concerning an issue are dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue.

Informed Consent
A plaintiff alleging medical malpractice must demonstrate that the defendant, owing a duty to the plaintiff, violated a standard of reasonable care, causing injury to the plaintiff. The Aulers contend that the Hospital is liable for malpractice because it failed to obtain her informed consent to the breast implant procedure. The doctrine of informed consent is based upon the patient's right "to intelligently reject or accept treatment." Indiana law recognizes the duty of a physician to make a reasonable disclosure of material facts relevant to the decision the patient is required to make. This duty arises from the relationship between the physician and the patient and is imposed as a matter of law. Other jurisdictions have recognized that a hospital can be held vicariously liable for the physician's breach of the duty to obtain informed consent.

In this case, the Aulers do not assert that Dr. Van Natta was the Hospital's employee or agent or that the Hospital otherwise controlled Dr. Van Natta's practice in any way. Nor do they contend that the Hospital knew of any propensity that Dr. Van Natta might have had for not obtaining a patient's informed consent. Thus, they make no claim that the Hospital is vicariously liable. We, therefore, consider only whether the Hospital had an independent duty to obtain Nora's informed consent to insert the breast implant and whether the Hospital gratuitously assumed such a duty when it provided Nora with the general consent form.

The majority of courts have declined to impose upon hospitals a general duty to obtain a patient's informed consent. Generally, a hospital does not have duty to advise patient prior to surgery as to surgical procedure to be employed and risks involved. Absent agency relationship with physician, hospital had no duty to obtain patient's informed consent to surgery

Decision
Along with the majority of states that have considered this question, we conclude that, in the absence of circumstances supporting a claim for vicarious liability or other special circumstances, a hospital has no independent duty to obtain a patient's informed consent. In doing so, we recognize that one purpose for securing a patient's informed consent is to protect the patient from a physician who, without a legally sufficient consent, commits a battery. If there is a failure of informed consent, no battery occurs until the surgery or other procedure is performed. However, when the physician performs the procedure in the absence of such consent, it is the physician, not the hospital, who commits the battery. We hold that because Dr. Van Natta was not an employee or agent of the Hospital, and no other special circumstances are present, the Hospital had no independent legal duty to obtain Nora's informed consent.

However, the Aulers claim that, by providing the written consent form and obtaining Nora's signature thereon, the Hospital assumed a duty to obtain her legal informed consent to the surgery.

We can draw only one conclusion from the Hospital's general consent form: it was not designed to replace the informed consent required to be given by Dr. Van Natta. The mere existence of general written consent form had little significance with regard to what physician may have told patient. The Hospital did not undertake to perform the duty of obtaining informed consent. Consequently, the Hospital did not gratuitously assume the physician's duty to obtain informed consent.

Our decision here is consistent with that reached by other states that have considered a similar issue. A nurse having patient sign hospital permit to operate at order of physician did not amount to hospital assuming physician's "non-delegable duty" of obtaining patient's informed consent; In Missouri, if hospital furnishes consent forms to patient for signature, it does not thereby assume duties that are business of physician . In Idaho a state law provides that hospital with approval of physician or dentist may perform ministerial act of documenting such consent).

Conclusion
We hold that, under the facts and circumstances presented, the Hospital did not have an independent legal duty to obtain Nora's informed consent to insert the saline breast implant. We further conclude that there is no genuine issue of material fact regarding the Hospital's gratuitous assumption of such

a duty. Absent a duty, the Hospital can not be liable for malpractice. The trial court properly entered summary judgment in favor of the Hospital.

Questions:

1. What are the responsibilities of the hospital to ensure that informed consent has been obtained from the patient?

2. What liability, if any should be imparted to the physician? Discuss your answer.

APA

Textbooks:

Garrett, T., Baillie, H., & Garrett, R. (2013). Health care ethics: Principles and problems (6th ed.). Upper Saddle River, NJ: Prentice Hall.
Pozgar, G. (2011). Legal aspects of health care administration (11th ed.). Sudbury, MA: Jones & Bartlett Learning, LLC.