111 A few courts have held that if the minor is sufficiently mature to appreciate the nature of the procedure and the risks involved, and the procedure itself will be of therapeutic benefit to him, legal effect may be given to the minor's consent. There is justification for the view that the legal sufficiency of a minor's consent should not be judged by his chronological age alone, but by his degree of intellectual maturity and ability to comprehend the nature and consequences of the proposed treatment.112 113 The law as it applies to mentally incompetent persons is essentially similar to that of minors. In general, one must turn to a legal guardian for consent before undertaking any procedure or surgery.1 Where there has been no adjudication of incompetency, but it appears that the patient is incapable of appreciating the nature of the proposed treatment, or the risks involved, wisdom dictates obtaining the consent of the patient's parent or nearest relative, in addition to the consent of the patient himself.1 114 (2) Experimental procedures-While the law requires the physician to keep abreast of the current state of medical knowledge, the general rule is that he cannot experiment with a patient. On the other hand, progress in the field of medicine requires con 115 110 “A minor may be emancipated for some purposes and not for others. The parent may authorize his minor child to make contracts of employment and collect and spend the money earned and still not emancipate him from parental custody and control." Lufkin v. Harvey, 154 N.W. 1097, 1098 (1915). In recognition of the consent problems associated with the treatment of minors, a number of States have recently enacted statutes giving legal effect to consents of married or emancipated minors. New Mexico Statutes Annotated, Sec. 12-12-1; Smith Hurd Illinois Statutes Annotated, Ch. 91-18.1, -18.2; Arizona Revised Statutes, Title 44–132. 111 In Lacey v. Laird, 166 Ohio 12, 139 N.E. 2d 25 (1956), the court held that an 18year-old girl could give a valid consent to a simple operation involving plastic surgery on her nose. In Gulf & Ship Island R.R. v. Sullivan, 155 Miss. 1, 119 So. 501 (1928), a 17-year-old-boy's consent to a smallpox vacination was upheld by the court. On the other hand, the minor's consent alone will not be legally effective where the procedure involved is not intended to be of therapeutic benefit to him. Bonner v. Moran, 126 F. 2d 121 (D.C. Cir., 1941); Zaman v. Schultz, 19 Pa. D. & C. 309 (1933). 112 'Horty, J. F., et al.: Hospital Law Manual, Il: 30, Health Law Center, University of Pittsburgh (1963); RESTATEMENT OF TORTS, § 59. See discussion infra, pp. 48-51. 113 114 Kloss, D.: "Consent to Medical Treatment," Med. Sci. Law. 5: 94 (April 1965). 115 Farber v. Olkon, 40 Cal. 2d 503, 254 P. 2d 520 (1953). Langford v. Kosterlitz, 107 Cal. App. 175, 290 P. 80 (1930). tinual study and research, some of which must be conducted by the practicing physician under clinical conditions.116 The law does not proscribe the use of a novel procedure per se, but imposes the obligation upon the physician to inform the patient of the proposed procedure and obtain his consent thereto, and not to deviate radically from the accepted method or procedure. If he does, he will be held liable for undertaking a method of treatment which a reasonable practitioner (or a respectable minority of his colleagues) would not have followed under the circumstances.' Where all approved methods of treatment have failed, and adequate consultation supports the need for a deviation from the standard form(s) of treatment, the best interests of the patient might reasonably dictate the use of a novel or relatively untried procedure or therapeutic regimen. The informed written consent of the patient is a necessity in this situation, in order to protect the physician from a later charge of malpractice in departing from the accepted methods of treatment. 117 118 116 This discussion relates only to the use of novel medical treatment intended to benefit a particular patient. (See, for example, Saron v. State, 263 N.Y.S. 2d 591 (1965), involving the use of a novel drug in the treatment of diabetes.) The general subject of clinical research involving human experimentation, for the benefit of mankind as a whole, is beyond the scope of this manual. For a comprehensive analysis of the many legal, ethical, and social problems involved, the reader is referred to the excellent compilation, Clinical Investigation in Medicine: Legal, Ethical and Moral Aspects, Law Medicine Research Institute (1963). See also the recent first-impression ruling of the New York Board of Regents, suspending the medical licenses of two physicians for fraud or deceit in the practice of medicine, in carrying out experimental cancer research on elderly hospital patients without first explaining the nature of the research experiment and obtaining the informed consents of the patients to participate therein. Wall Street Journal (Jan. 21, 1966). 117 Baldor v. Rogers, 81 So. 2d 658, 55 A.L.R. 2d 453 (Fla., 1955), reh'g 81 So. 2d 661 (Fla., 1955); Bruce v. United States, 167 F. Supp. 579 (S.D. Cal., 1958). The patient's written consent to an experimental procedure will not protect the physician where he has not acted with reasonable care or has undertaken a method of treatment which a reasonable practitioner would not have followed under the same circumstances. 118 It cannot be overemphasized that the patient's understanding of what is proposed, and the alternatives thereto, must be clearly shown before proceeding with novel treatment. In all such instances, the standard form of consent should be supplemented with a written statement explaining the proposed treatment as fully as practicable. See pp. 48-51. Principles of Malpractice SEC. 1 GENERAL Every PHS medical employee should regard malpractice prevention as an integral part of his daily patient care responsibilities, from the point of view that all affirmative measures taken to minimize the occurrence of malpractice claims will inevitably result in a higher quality of medical care to all the PHS beneficiaries whom he has occasion to treat. In addition to this fundamental objective, there is the further incentive of minimizing the exposure of each PHS professional medical employee to personal liability for negligent conduct arising out of his patient care activities. 119 Even when a PHS employee is not sued personally, however, the commencement of a malpractice suit against the United States arising out of care given in a PHS facility sets into motion a chain of activities which are extremely wasteful of the time and energies of the medical personnel involved, and diverts them from their normal responsibilities. There are also added administrative burdens in investigating the allegations of the complaint, obtaining statements of medical personnel, reproducing the medical records, and gathering other information necessary in order that the case may be properly defended. In addition to the administrative burdens created by malpractice suits, there are significant disadvantages of a psychological nature which cannot be overlooked. Thus, the institution of a malpractice suit usually represents an attack on the medical judgment and integrity of a physician, nurse, or other professional medical employee. The individual who is challenged in this manner is bound to be affected psychologically, and pending the outcome of the case, he is likely to suffer both loss of peace of mind and a proportionate in 119 See pp. 10-17. crease in nervous tension. As if this were not enough, there is the added psychological tension and loss of valuable time associated with the employee's attendance at pre-trial deposition proceedings and in testifying at the trial itself. Certainly, no PHS medical employee should ever permit the fear of a possible malpractice suit to interfere with his exercise of sound medical judgment in treating a patient, but plain common sense dictates that he be at least familiar with the signposts of incipient malpractice litigation and understand the principles for the prevention of such suits. A conscious awareness of these principles will aid him considerably in carrying out his medical and legal responsibilities to all the patients entrusted to his care. SEC. 2 CAUSES OF MALPRACTICE LITIGATION Essential to any program of malpractice prevention is a basic understanding of some of the general factors which influence all malpractice litigation. Some of these factors are directly related to the quality of medical care given, while others represent indirect influences of a sociological nature. The more noteworthy of these are discussed below. (a) Indirect, Sociological Influences 120 Perhaps the most significant sociological factor influencing the increase in malpractice litigation over the past several years has been the changing nature of the physician-patient relationship. The family doctor has given way to the busy specialist, who generally sees the patient after referral by another physician, and seldom gets to know him intimately. It may be stated almost axiomatically that the less personal the relationship between the patient and his physician, the more likely the patient is to think in terms of suing for damages when he is dissatisfied with the results of treatment. 120 Bull. Amer. Coll. Surg. 4: 126 (May-June 1956). 121 121 The increased malpractice potential of impersonal medical care is discussed at length infra. pp. 39 et seq. 122 Another important influence on malpractice litigation is the increasing public interest in medicine and awareness of medical facts. Discussions of medical topics which appear frequently in family magazines, and an increase in the number of television programs featuring medicine and the medical profession, have made the public exceedingly knowledgeable in many areas of medical practice. The result has been a tendency to overrate the power of medicine and, at the same time, to underrate its dangers. The increased general awareness that doctors make mistakes and are sometimes sued for damages, has made the public more sophisticated and generally better informed concerning the entire subject of malpractice. That this has had an effect on the medical profession itself, cannot be denied. There is little doubt that physicians have an overwhelming fear of malpractice suits, not so much from the potential pecuniary loss which may result, but from the injury to community reputation resulting from a mere allegation of negligence.123 Fearing the adverse publicity of a lawsuit, many physicians have urged their insurance carriers to settle otherwise unjustifiable claims, and when word of such settlements has spread, other potential litigants have been encouraged to press similar claims. Since the average patient does not adequately appreciate the complexities of modern medical practice, he is often prone to blame the treating physician whenever the final outcome is not what he expected, and learning of a settlement made by someone else may be just enough to prod the patient's thinking in this direction. On the other hand, it should be recognized that as the practice of medicine becomes increasingly more complex, complicated and hazardous diagnostic and surgical procedures are bound to prove harmful in a certain percentage of cases, some of which will undoubtedly give rise to malpractice claims. As shown later, however, even when the patient has a reasonable legal basis for a claim, a malpractice suit will not inevitably result, unless other circumstances of a non 122 123 Ellis, J. R.: "The Profession and the People," J. Med. Educ. 39: 7 (January 1964). See Krock, "The Sword of Damocles," Amer. Surg. 27: 295 (1961); Stetler, "The History of Reported Medical Profession Liability Cases," 30 Temp. L.Q. 366, 383 (1957). Despite such fears, there is evidence which tends to contradict the widespread belief that a malpractice suit seriously damages the physician's reputation. See Shindell, S.: “A Survey of the Law of Medical Practice," J.A.M.A. 194: 167 (Oct. 18. 1965). |