An Approach to Selected Legal Issues: Confidentiality, Mandatory Reporting, Abuse and Neglect, Informed Consent, Capacity Decisions, Boundary Issues, and Malpractice Claims

Brendel, Rebecca W.; Wei, Marlynn; Schouten, Ronald; Edersheim, Judith G.

doi:10.1016/j.mcna.2010.08.003

Cited by 22 publications

(6 citation statements)

References 16 publications

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“…The ethical problems of mandatory reporting have been pointed out in other areas . For example, psychiatric nurses are mandated to report abuse, and it has been described that decisions to report abuse in psychiatric home care are ‘practical and moral and, when combined with legal imperatives, create ethical dilemmas for healthcare professionals’…”

Section: Discussionmentioning

confidence: 99%

How mandatory is the mandatory reporting of children at risk?

Isaacs

Britton

Kilham

et al. 2018

J Paediatrics Child Health

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Although mandatory reporting of suspected child abuse was first introduced over 50 years ago, there are no quantitative studies addressing whether or not it achieves better outcomes for children. We report two cases of maternal infection, one with tuberculosis (TB) and one with human immunodeficiency virus (HIV), where the mothers' failure to attend follow‐up appointments raised the possibility of significant harm if their infants were infected. Some health professionals argued strongly that mandatory reporting meant the mothers should be reported to child protection authorities. Others argued that the risk was not critically imminent and an immediate report could seriously compromise maternal confidentiality, risked maternal disengagement and a worse outcome. An alternative was to make more vigorous efforts to contact the mothers and report only if these failed. In the TB case, reporting to child protection was deferred in favour of making more strenuous efforts at communication, which proved successful. In the HIV case, a case worker reported the case to child protection, but when the doctor contacted child protection authorities they agreed not to contact the mother unless the doctor's vigorous attempts to communicate with her failed. We do not advocate for breaking the law regarding mandatory reporting, but we do argue for a considered approach to the timing of reporting and for a collaborative approach with child protection services.

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Section: Discussionmentioning

confidence: 99%

How mandatory is the mandatory reporting of children at risk?

Isaacs

Britton

Kilham

et al. 2018

J Paediatrics Child Health

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“…Violation of the doctor's duty of non-malfeasance means that an instance of malpractice occurred during the procedure, as determined based on testimony from expert counsel. Similarly to the US court system, the elements that must be proven to make a successful claim are (1) the contractual duty between doctor and patient, (2) breach of this duty due to failure to comply with professional standards, (3) a causal relationship between the breach of duty and injury to the patient, and (4) the existence of damage resulting from the injury [ 2 3 4 5 ]. In South Korea, the patient must convince the judge that the doctor was negligent and provide proof of causation, which is difficult without help from other doctors.…”

Section: Introductionmentioning

confidence: 99%

“…In contrast to arguments involving violation of non-malfeasance, in which the burden of proof is on the patient, physicians must prove that they provided proper information and obtained proper informed consent [ 2 3 4 5 ]. This makes it easier for a patient to file a lawsuit in South Korea.…”

Section: Introductionmentioning

confidence: 99%

Informed Consent as a Litigation Strategy in the Field of Aesthetic Surgery: An Analysis Based on Court Precedents

et al. 2016

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BackgroundIn an increasing number of lawsuits doctors lose, despite providing preoperative patient education, because of failure to prove informed consent. We analyzed judicial precedents associated with insufficient informed consent to identify judicial factors and trends related to aesthetic surgery medical litigation.MethodsWe collected data from civil trials between 1995 and 2015 that were related to aesthetic surgery and resulted in findings of insufficient informed consent. Based on these data, we analyzed the lawsuits, including the distribution of surgeries, dissatisfactions, litigation expenses, and relationship to informed consent.ResultsCases were found involving the following types of surgery: facial rejuvenation (38 cases), facial contouring surgery (27 cases), mammoplasty (16 cases), blepharoplasty (29 cases), rhinoplasty (21 cases), body-contouring surgery (15 cases), and breast reconstruction (2 cases). Common reasons for postoperative dissatisfaction were deformities (22%), scars (17%), asymmetry (14%), and infections (6%). Most of the malpractice lawsuits occurred in Seoul (population 10 million people; 54% of total plastic surgeons) and in primary-level local clinics (113 cases, 82.5%). In cases in which only invalid informed consent was recognized, the average amount of consolation money was KRW 9,107,143 (USD 8438). In cases in which both violation of non-malfeasance and invalid informed consent were recognized, the average amount of consolation money was KRW 12,741,857 (USD 11,806), corresponding to 38.6% of the amount of the judgment.ConclusionsSurgeons should pay special attention to obtaining informed consent, because it is a double-edged sword; it has clinical purposes for doctors and patients but may also be a litigation strategy for lawyers.

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“…19 The law allows for delivery of life-saving treatment without any consent 1 or when a patient is undergoing court-ordered compulsory treatment. 20–22 In nonemergent situations, some states routinely recognize family members as de facto surrogates but may impose restrictions on their decision-making authority for specific situations, such as withdrawing life-sustaining treatment. 23 In the example of Ms. A., the hospital’s legal counsel interpreted state law as prohibiting surrogate consent for surgery by family or next of kin in the absence of a formal surrogate.…”

Section: Introductionmentioning

confidence: 99%

Evaluation of the Capacity to Appoint a Healthcare Proxy

Moye¹,

Sabatino²,

Brendel³

2013

The American Journal of Geriatric Psychiatry

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The appointment of a healthcare proxy is the most common way through which patients appoint a surrogate decision maker in anticipation of a future time in which they may lack the ability to make medical decisions themselves. In some situations, when a patient has not previously appointed a surrogate decision maker through an advance directive, the healthcare team may ask whether the patient, although lacking the capacity to make a healthcare decision, might still have the capacity to appoint a healthcare proxy. In this article the authors summarize the existing, albeit limited, legal and empirical basis for this capacity and propose a model for assessing capacity to appoint a healthcare proxy that incorporates clinical factors in the context of the risks and benefits specific to surrogate appointment under the law. In particular, it is important to weigh patients’ understanding and choice within the context of the risks and benefits of the medical and interpersonal factors. Questions to guide capacity assessment are provided for clinical use and refinement through future research.

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An Approach to Selected Legal Issues: Confidentiality, Mandatory Reporting, Abuse and Neglect, Informed Consent, Capacity Decisions, Boundary Issues, and Malpractice Claims

Cited by 22 publications

References 16 publications

How mandatory is the mandatory reporting of children at risk?

How mandatory is the mandatory reporting of children at risk?

Informed Consent as a Litigation Strategy in the Field of Aesthetic Surgery: An Analysis Based on Court Precedents

Evaluation of the Capacity to Appoint a Healthcare Proxy

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