12

Ethics, Law, and Physician Behavior

Learning Objectives

• Demonstrate understanding of how important court cases have shaped medical care
• Demonstrate understanding of important elements of physician behavior and how they can affect patient care
• Answer questions about unconscious interactions and how they can affect patient care

Legal Issues

Selected Important Court Cases

Karen Ann Quinlan: Substituted Judgment Standard

In the Quinlan case, Karen Ann was in a persistent vegetative state, being kept alive only by life support. Her father asked to have her life support terminated according to his understanding of what Karen Ann would want. The court found that “if Karen herself were miraculously lucid for an interval . . . and perceptive of her irreversible condition, she could effectively decide upon discontinuance of the life support apparatus, even if it meant the prospect of natural death.”

• The court therefore allowed termination of life support—not because the father asked but because it held that the father’s request was most likely the expression of Karen Ann’s own wishes.
• Substituted judgment begins with the premise that decisions belong to the competent patient by virtue of the rights of autonomy and privacy.
• In this case, however, the patient is unable to decide and a decision-maker who is the best representative of her wishes must be substituted.
• In legal terms, the patient has the right to decide but is incompetent to do so. Therefore, the decision is made for the patient on the basis of the best estimate of his or her subjective wishes.

The key here is not who is the closest next of kin, but who is most likely to represent the patient’s own wishes.

Brother Fox (Eichner v. Dillon): Best Interest Standard

In its decision of Eichner v. Dillon, the New York Court of Appeals held that trying to determine what a never-competent patient would have decided is practically impossible. Obviously, it is difficult to ascertain the actual (subjective) wishes of incompetents. Therefore, if the patient has always been incompetent, or no one knows the patient well enough to render substituted judgment, the use of substituted judgment standard is questionable, at best.

Under these circumstances, decisions are made for the patient using the best interest standard, the object of which is to decide what a hypothetical “reasonable person” would decide after weighing the benefits and burdens of each course of action.

The issue of who makes the decision is less important here. All persons applying the best interest standard should come to the same conclusions.

Infant Doe: Foregoing Lifesaving Surgery, Parents Withholding Treatment

As a general rule, parents cannot withhold life- or limb-saving treatment from their children. Yet, in this exceptional case they did.

Baby Boy Doe was born with Down syndrome (trisomy 21) and with a tracheoesophageal fistula. The infant’s parents were informed that surgery to correct his fistula would have “an even chance of success.” Left untreated, the fistula would soon lead to the infant’s death from starvation or pneumonia. The parents, who also had 2 healthy children, chose to withhold food and treatment and “let nature take its course.”

Court action to remove the infant from his parents’ custody (and permit the surgery) was sought by the county prosecutor. The court denied such action, and the Indiana Supreme Court declined to review the lower court’s ruling. Infant Doe died at 6 days of age, as Indiana authorities were seeking intervention from the U.S. Supreme Court.

Note that this case is simply an application of the best interest standard. The court agreed with the parents that the burdens of treatment far outweighed any expected benefits.

Roe v. Wade (1973): The Patient Decides

Known to most people as the “abortion legalizing decision,” the importance of this case is not limited to its impact on abortion. Faced with a conflict between the rights of the mother and the rights of the putative unborn child, the court held that in the first trimester the mother’s rights are paramount and that states may, if they wish, have the mother’s rights remain paramount for the full term of the pregnancy.

• Because the mother gets to decide even in the face of threats to the fetus, by extension all patients get to decide about their own bodies and the health care they receive.
• In the United States, the locus for decision-making about health care resides with the patient, not the physician.

Note that courts have held that a pregnant woman has the right to refuse care (e.g., blood transfusions) even if it places her unborn child at risk.

Tarasoff Decision: Duty to Warn and Duty to Protect

A student visiting a counselor at a counseling center in California states that he is going to kill someone. When he leaves, the counselor is concerned enough to call the police but takes no further action. The student subsequently kills the person he threatened. The court found the counselor and the center liable because they did not go far enough to warn and protect the potential victim.

• The counselor should have called the police and then tried in every way possible to notify the potential victim of the potential danger.
• In similar situations, first try to detain the person making the threat. Next, call the police. Finally, notify and warn the potential victim. All three actions should be taken, or at least attempted.

Autonomy

Autonomy is the central principle for ethics in health care. The origins of the word autonomy are from the Greek words: “autos” and “nomos,” meaning self-rule or self-determination. In ethics, this translates to the principle that every competent individual has the right to make his or her own health care decisions without coercion or coaxing.

In medical practice, competent patients are required to provide informed consent for any treatment or procedure.

Informed Consent

Informed consent is a complete discussion of proper information related to a treatment or procedure between a physician and patient, where the patient voluntarily agrees to the care plan and is free of coercion.

• Full, informed consent requires that the patient has received and understood 5 components of information:
  • Nature of the procedure: What is the procedure or treatment?
  • Purpose or rationale: Why the procedure is being performed? or Why the drug is being administered?
  • Risks of the treatment regimen
  • Benefits of the treatment regimen
  • Alternatives to the recommended treatment regimen
• A signed paper granting informed consent that the patient does not read or does not understand does NOT constitute informed consent:
  • It is not simply enough for a physician to “give” the patient information.
  • The patient needs to understand what he is being treating with, why the physician recommends this treatment, and the risks, benefits, and alternatives to treatment.
  • The patient must understand all 5 components of information.
• The physician cannot discuss treatment options that are not approved. For example, the physician should not discuss with the patient a homeopathic treatment option for cancer.
• Informed consent may be written or oral.
• Informed consent can be withdrawn at any time. It does not matter if the patient has signed all the necessary paperwork and is on the way to the operating room; he can decide to not have the procedure done for any reason.

There are 4 situations in which a physician does not need to obtain informed consent from a patient in order to perform a procedure or another treatment, i.e., there are special situations in which informed consent is not required.

• Emergency situation
  • In an emergency situation, the physician should do what is in the best interest of the patient.
  • If the patient is unconscious and needs a life-saving or limb-saving procedure, the procedure should be performed (consent is implied).
• Waiver is provided by patient
  • The patient “waives” his right to receive information related to the treatment. In other words, the patient trusts that you will do what is in his best interest.
• Patient is incompetent
  • Some patients do not have the capacity to provide informed consent:
    • Are unconscious
    • Have attempted suicide
    • Are in a grossly psychotic or dysfunctional state
    • Are intoxicated with drugs and/or alcohol
    • Are in physical or mental state which prevents simple communication
  • Incompetence is determined by a judge based on a physician’s assessment of capacity.
• Therapeutic privilege
  • The physician will deprive the patient of autonomy in the interest of health. In other words, if the physician truly believes the patient is not able to make good decisions for himself AND other physicians agree, the physician can treat without informed consent.
  • The physician can invoke therapeutic privilege and move beneficence, nonmaleficence, and justice above patient autonomy.

Committed Patients

A committed mentally ill adult has the following legal rights:

• Must have treatment available
  • Patient should be informed on a regular basis what treatment options are available.
• Can refuse treatment
  • Patient with a severe form of schizophrenia still has the right to refuse to take antipsychotic medication (except when patients are a danger to themselves or others).
• Can request a legal hearing to determine sanity
  • Competence is a legal matter; only a court can determine competence.
  • Patient has the right to demand a trial to determine sanity.
• Loses only the civil liberty to “come and go”
  • Patient does not have the right to leave.
  • Patient can “choose” to take his medication; however, he cannot “choose” to leave.

Table 12-1. Decision-Making Standards

	What It Means	Who Makes the Determination
Capacity	An assessment of your decision-making ability	Physician
Competence	A legal assessment of your ability to make medical decisions for yourself	Judge
Sanity	A verdict on your ability to make decisions and be held accountable for the consequences of those decisions	Jury

Assume the patient is competent unless you have clear behavioral evidence that indicates otherwise.

• Competence is a legal issue.
• We do not determine competence on a medical basis.
• From an ethical and legal standpoint, all adult patients are considered competent unless specifically proven otherwise.
• Only a court of law can make that assessment.

Any physician—not just a psychiatrist—can determine whether a patient has the capacity to understand the medical issues (and related treatment) pertaining to his condition. The physician is able to determine whether there is an organic delirium affecting the patient’s capacity to understand, i.e., caused by a medical condition such as alcohol/drug intoxication, meningitis, or a psychiatric disorder. The conclusions made by the physician will be based primarily on a neurological exam, as well as an assessment of the patient’s comprehension, memory, judgment, and reasoning skills.

It should be noted that a diagnosis such as schizophrenia by itself tells you little about a patient’s competence. If the patient is diagnosed with schizophrenia and controlled on medication, the patient may very well be competent. So a diagnosis alone cannot render a patient incompetent.

Clear behavioral evidence of incompetence includes:

• An attempted suicide
• Gross impairment in reality (psychosis) and dysfunctionality and/or physical or mental state preventing patient from having simple conversation

Patients who attempt suicide, for example, may be admitted to the hospital against their will for psychiatric evaluation.

Note

A physician is permitted to “detain” a patient for up to 48 hours.

If, as the physician, you are unsure, you must assume the patient is competent. The patient does not have to prove to you that he is competent. There must be clear evidence to assume that he is not.

When patients are unable to make medical decisions for themselves, someone called a surrogate needs to make those decisions for them.

In order for a surrogate to make a decision, three conditions must be present:

• The patient must be incapacitated.
• The patient must not have made an advance directive.
• The surrogate must know what the patient would truly want if he were competent.

Suppose a woman is unconscious as a result of a severe car accident. The surrogate will be asked, “What do you think the patient would want if she were conscious?” Based on the response, the patient will be appropriately treated or treatment measures will be withdrawn.

When a surrogate makes a decision for a patient, use the following criteria and in this order:

1. Subjective standard
2. Substituted judgment
3. Best interests standard

There is a set priority, i.e., an order, of who can serve as a surrogate. First is a person’s spouse. Second is a person’s adult children:

1. Spouse
2. Adult children
3. Parents
4. Adult siblings
5. Other relatives

Suppose the patient mentioned earlier is determined to be “brain dead” as a result of the car accident, and it is determined that she had no advance directive. Her spouse would be the first person asked about potentially terminating life support and allowing nature to take its course.

A subjective standard is based on the premise that a decision is being made based on the actual wishes of the patient. You should consider the following questions:

• Is there an actual intent or advance directive?
• What did the patient say in the past? Can that be verified?

Always follow the advance directives outlined in a living will or by a Health Care Power of Attorney (HCPOA).

Note

An advance directive can be given in writing or given orally.

A substituted judgment begins with the premise that decisions belong to the competent patient by virtue of the rights of autonomy and privacy. You should consider the following questions:

• Who best represents the patient?
• What would the patient say if she were competent?

In both ethical and legal terms, the patient has the right to make medical decisions but is now unable to do so by virtue of incompetence. The key here is not to identify the closest next of kin, but to identify the person most likely to represent the patient’s own wishes, i.e., the person who knows the patient best.

For a best interest standard, the primary objective is to decide what action a hypothetical “reasonable person” would take after weighing the benefits and burdens of a particular medical decision or course of action. The issue of who actually makes the decision is less important, as all those applying the principles of best interest standard should come to the same conclusion. You should consider the following question:

• Are these in the best interest of the patient and not in the best interest of the decision-maker?

Recall Question

1. A 91-year-old woman presents to the emergency department with nausea, vomiting, and abdominal pain. Laboratory tests and imaging studies confirm a diagnosis of acute pancreatitis. Given the new diagnosis, she changes her code status from full code to do not resuscitate. Which of the following describes patient autonomy?

   1. Assessment of a patient's decision-making ability
      
   2. Legal assessment of a patient to make medical decisions
      
   3. Verdict on a patient's ability to make decisions and be held accountable for the consequences of those decisions
      
   4. A patient's financial ability to pay for healthcare
      
   5. Right of a competent patient to make his own health care decisions

Answer: E

Advance Directives

An advance directive is a set of instructions given by a patient in anticipation of the need for a medical decision in the event the patient becomes incompetent. There are three primary forms of advance directive:

• An oral advance directive includes statements made by a patient prior to incapacitation.
  • Problems can arise from variance and interpretation; e.g., was the patient properly informed before she became incapacitated? How specific was the directive?
  • Good rule to follow: the more people who heard the oral directive, the more valid the directive.
• A living will is a written advance directive detailing the treatment measures the patient would want to receive (or not receive) should decision-making capacity be lost.
  • A family member cannot override patient’s wishes; i.e., if the patient’s living will indicates she does not want to be intubated in the event she becomes incapacitated but the patient’s family requests intubation, the physician cannot intubate.
• A medical power of attorney or HCPOA is a designated agent assigned by the patient to make medical decisions in the event she loses decision-making capacity.
  • Assumption is that the agent fully understands the wishes of the patient and essentially “speaks with the patient’s voice.”
  • The physician must follow the directives of this individual, irrespective of other family members’ wishes.

Do not resuscitate (DNR) orders are made by the patient or the surrogate. DNR refers only to cardiopulmonary resuscitation.

• In many instances, the physician may not be aware of DNR decisions.
• If DNR order is in place, cardiopulmonary resuscitation measures must be stopped as soon as the physician becomes aware of the order.
• All other treatment measures should be continued.

Patient Confidentiality

Patient confidentiality is absolute. Physicians require patients to divulge private information, and in doing so are required to keep all discussions confidential. Breach of trust can cause irreparable harm to the physician-patient relationship.

• Physicians must strive to ensure that others cannot access patient information.
  • Patient care must not be discussed with another health care provider in a public venue, where others can overhear the conversation (lunch room, elevator).
  • Patient’s physical and electronic medical records must be protected.
  • Health care provider owns the medical records, but patient must be given access or copy upon request.
• If you receive a court subpoena, show up in court but do not divulge information about your patient. When asked personal health information questions about a patient, you should maintain patient confidentiality.

There a few exceptions to patient confidentiality.

• Duty to warn and to protect (Tarasoff case)
  • If patient is a threat to self or others, the physician must break confidentiality.
  • There is a duty (on the part of the physician) to warn and protect innocent people from harm that could be imposed by “your patient.”
• Specific threat to a specific person
• Suicide, homicide, and child/elder abuse
• Infectious diseases may need to be reported to public officials or an innocent third party
• Impaired drivers

Note

The Health Insurance Portability and Accountability Act (HIPAA) protects the privacy of individually identifiable health information. HIPAA violations can result in imprisonment and substantial fines.

Table 12-2. Rules of Privacy in Health Care

Situation	Appropriate Response
Questions from insurance company	Obtain a release from patient
Questions from patient’s family	Requires explicit permission from patient
When to withhold information from patient	Never, i.e., under no circumstances (if concerned about negative reaction by patient, figure out a way to explain and mitigate negative outcome)

Treatment of Minors

Children age <18 years are minors and thus legally incompetent. Children cannot make health-related decisions for themselves, thus they cannot give “informed consent” to authorize a medical procedure/treatment. A parent or guardian must provide informed consent instead.

Emancipated minors, however, present some exceptions:

• If child is age >13 and taking care of self (i.e., living alone, responsible for all aspects of own life), he is essentially treated as an adult.
• Person age <18 who is married
  • Child who marries age <18 is deemed competent to make own decisions.
  • Pregnancy or birth does not always emancipate; differences from state to state make this unlikely to be tested on the exam.
• Person age <18 serving in the military

Note

A child who comes home from school and takes care of brothers and sisters while waiting for mother and/or father to return from work would not be considered an emancipated minor.

Note

In general, the exam will not test controversial topics where there may be different state laws.

Partial emancipation is granted to minors in some cases:

• Substance and drug-abuse treatment
• Prenatal care
• Sexually transmitted diseases
• Birth control

For example, a 15-year-old girl could go to a physician’s office for evaluation of an STD or to request birth control, and the physician must treat her. Furthermore, the physician must respect her confidentiality pertaining to these issues.

Withholding Treatment from Minors

Parents cannot withhold life- or limb-saving treatment from their children. If parents refuse permission to treat their child, then do the following:

• Immediate emergency: go ahead and treat
• Not emergency but still critical (e.g., juvenile diabetes): the child will be declared a ward of the court and the court grants permission
• Not life- or limb-threatening (e.g., minor stitches needed): listen to parents

Look at the following scenarios. For each, see who would provide consent.

Situation	Who Provides Consent
A 17-year-old girl’s parents are out of the country and the girl is staying with a babysitter	If a threat to health, the physician can treat under doctrine of in locum parentis
A 17-year-old girl who has been living on her own and taking care of herself	The girl herself
A 17-year-old girl who is married	The girl herself
A 16-year-old daughter refuses medication but her mother consents	The mother; write the prescription
The 16-year-old daughter consents to medication, but the mother refuses	The mother; do not write the prescription
The mother of a minor consents to medication but the father refuses	Consent from only 1 parent is required; write the prescription

Recall Question

1. A 28-year-old schizophrenic man presents to the emergency department with altered mental status after ingesting a large amount of bath salts. When questioned about it, he states “they told me to do it.” Which of the following is correct when determining patient competency?

   1. It is the verdict about a patient's ability to make decisions and be held accountable for the consequences of those decisions
      
   2. It is determined by the physician
   3. It is determined by a judge
   4. The patient in the question stem is not competent
   5. The patient in the question stem is legally insane

Answer: C

Physician-Assisted Suicide

Assisted suicide is suicide committed by a person with the assistance of another person.

• You cannot assist patients to commit suicide. You can permit “competent” patients to die by withdrawing medical treatment (feeding tube, hydration) at their request. However, you cannot provide patients with the means to commit suicide themselves.
• Well-informed and competent patients have an almost absolute right to refuse any part (including the whole) of a medical treatment. Even though you may not understand the reasoning behind the decision, you must respect patients’ wishes.

Good Samaritan Laws

Good Samaritan laws limit liability when physicians help in nonmedical settings. Suppose a physician is driving down a road when she comes upon a three-car accident. No one else has stopped to help. She now has a choice to make: should she stop or not? As a physician she is not required to stop; i.e., if she does not, no civil or criminal charges would be brought against her.

The motorist who has crashed in this scenario is a “person,” and not a “patient.” Physicians are not required to stop and help at the scene of an emergency. If they do stop, they are acting as Good Samaritans. As such, the Good Samaritan laws limit a physician’s liability, so long as certain conditions are met.

• Actions are within the physician’s competence.
  • For example, every physician has been trained to administer CPR. If you have a medical bag with you, you could potentially administer some stitches. However, if the motorist was impaled with a large piece of wood, it is not likely you would be able to attend to the injury with your bag of medical supplies. Your focus would be to assess vital signs and keep the person calm while waiting for emergency services.
• Only accepted procedures are performed.
  • You would perform only standard of care procedures, not procedures that were considered alternative care or experimental.
• The physician remains at the scene after starting therapy, until relieved by competent personnel.
  • If you stop to assist a person, you need to stay there and provide assistance until the paramedics arrive.
  • In most instances, after receiving a call from 911 the paramedics are at the site of the action within a few minutes. Once they arrive and acknowledge that they now have the situation “under control” you can leave. However, you cannot treat the “person” and leave; you need to wait.
  • Preferably, join the ambulance and hand over the patient to another physician yourself.
• No compensation changes hands.
  • The person may offer you money or a gift as a “thank you” for stopping. You cannot accept any form of compensation.
  • If you accept compensation (or even a token gift), you become liable for the care provided because your services as a physician have been employed and the “person” now becomes your “patient.”

Negligence

Negligence is an act or omission (failure to act) by a physician or medical professional that deviates from the accepted medical standard of care. Negligence is often used regarding a civic duty. It can be intentional or unintentional:

• Intentional: malpractice
• Unintentional: medical negligence

Impaired Physician

Remove from patient contact health care professionals who pose risk to patients. Types of risks include:

• Infectious disease (TB)
• Substance related disorders
• Depression (or other psychological issues)
• Incompetence

Insist that they take time off; contact their supervisors if necessary. The patient, not professional solidarity, comes first.

Abuse

Abuse is defined by tissue damage, neglect, sexual exploitation, and mental cruelty.

Child abuse is a mandatory reportable offense up to age 18. Failure to report is a criminal offense.

If a case is reported in error, you (the physician) are protected from legal liability. Your duty to protect the child comes first. First separate child from the parents (protect); then report.

• Most cases of physical abuse involve injury to soft tissues (bruises, burns, and lacerations); in some cases there are no signs at all.
• Clinical signs suggesting abuse of a child include broken bones in year one of life, STD, and bruises, burns, and lacerations with incongruent explanations.
• Pay attention to injury location: soft tissue injury of inaccessible parts of the extremities/trunk.
• Non-accidental burns have a particularly poor prognosis.
• Shaken baby syndrome: look for broken blood vessels in eyes.

Note

Be careful not to mistake benign cultural practices, such as coining or moxibustion, for child abuse, but treat female circumcision as abuse.

Table 12-3. Types of Abuse

	Child Abuse	Elder Abuse	Domestic Abuse
Annual cases	> 2 million	5–10% in population	>4 million
Most common type	Physical battery/neglect	Neglect (most common with 50% of all reported cases); physical, psychological, or financial	Physical battery
Likely gender of victim	Age <5: female Age >5: male	63% female	Female
Likely gender of perpetrator	Female	Male or female Caretaker is most likely source of abuse; spouses are often caretakers	Male
Mandatory reportable?	Yes	Yes, mandatory reportable offense	No, not mandatory reportable offense
Physician’s response	Protect and report	Protect and report	Counseling and information Provide the victim information about local shelters and counseling; abused spouses tend to identify with the aggressor and blame themselves for the abuse
Comments	Child sexual abuse is defined as sex experienced age <18 with someone 5 years older: >25% of adult women report being sexually abused as a child 50% of perpetrators are family members 50% of victims tell no one

Recall Question

1. A 75-year-old man is brought to the physician by his wife for a follow-up appointment for essential hypertension. The patient’s wife is requesting medical records in regard to her husband’s care. She states that it is for legal reasons so she can assume future power of attorney. Which of the following is correct regarding patient confidentiality?

   1. Patient care must not be discussed with another health care provider in a public venue
   2. Patient care must not be discussed with another health care provider except in emergent situations
      
   3. Patient’s physical and electronic medical records are subject to revision by third party members in emergent situations
      
   4. Health care providers own the medical records, and patients are not allowed access without a subpoena from court
   5. Police and other authorities of the law can get access to patients’ medical records without a subpoena
      

Answer: A