Chapter 9 Consent
INFORMED CONSENT / CONCLUSIVE CONSENT
INFORMED CONSENT NOT REQUIRED – EMERGENCY CONSENT
In Loco Parentis
Abuse of a Controlled Substance
Sexually Transmitted Diseases/Communicable Diseases
CONSENT FOR SPECIFIC PROCEDURES / RELEASE OF INFORMATION
Breast Implant Surgery
Donation of Blood
Life Sustaining Treatment
Patients No Longer Able to Give Consent
In Nevada, the requirements for seeking and obtaining consent of the patient prior to the rendering of medical services are governed primarily by statute. Obtaining the legal consent of the patient generally consists of two elements. First, a physician must normally receive some form of consent before performing a procedure or rendering medical treatment. Failure to receive consent of any sort may subject the treating physician to liability for intentional torts such as battery, based on the physicians non-consensual touching of the patient.
Second, in most instances, informed consent is required prior to proceeding with a medical procedure. Failure to obtain a patients informed consent may subject the physician to liability based on medical malpractice. If the physicians failure to disclose a significant medical risk falls below a professional medical standard, as measured by the custom and practice of the physicians field of medical practice, the physician may be found liable for failure to obtain informed consent. Detailed information concerning not only the treatment or procedure, but the risks, costs, and alternatives should be discussed with the patient. There are certain circumstances, however, during which consent may be implied, such as medical emergencies where the treating physician must use competent medical judgment to assess the risk to the patient of delaying medical treatment.
Informed consent can be conclusively established if the treating physician follows certain steps and obtains the patients signature. While the minimum standard is informed consent, not conclusive informed consent, physicians should consider conclusive informed consent the goal.
The requirement of informed consent is not an onerous task, undertaken solely to avoid legal liability and malpractice claims. If approached in a positive and professional manner, obtaining informed consent from ones patients can be an integral step along the path to establishing trust between the physician and the patient. A physician who takes the time to explain, in laypersons terms, the significant medical risks, costs, and alternatives of a given procedure, will more likely earn the respect and trust of the patient.
There are numerous specific instances where the physician or other medical personnel must comply with statutory requirements for obtaining consent and/or protecting the patients right to privacy. In those specific cases, the physician would be well suited to review the applicable statute or statutes, or verify through other means his or her compliance with the requirements to receive informed consent from the appropriate person. Under certain circumstances, the appropriate person may not be the individual requiring or requesting medical treatment.
There are a significant number of situations involving consent to medical treatment that are not addressed by Nevada law. In those instances, Nevada courts have traditionally looked to California to provide guidance on how to proceed. Especially in the area of advanced and emerging technologies, California has a more thorough and complete body of law. While not necessarily controlling, California law regarding consent to medical treatment is the next best source of information.
INFORMED CONSENT / CONCLUSIVE CONSENT
Under Nevada law, NRS 449.710 (known as the Patients Bill of Rights) a patient has the right to certain information concerning the nature, risks, and costs associated with a given procedure or treatment plan. Indeed, if no emergency exists, the treating and regular physician must provide this information so that an informed decision can be made by the patient or other person legally designated to make decisions for the patient. In general, this information provides the patient or legal representative enough information to make an informed decision on how to proceed, and the costs associated with doing so. Specifically, the following information, at a minimum, must be discussed with the patient:
- A description of the significant medical risks involved;
- b. Any information on alternatives to the treatment or procedure, if requested;
- The person or persons responsible for performing the procedure; and,
- Costs likely to be incurred for the treatment proposed, as well as any alternative treatment or procedure.
It is the fundamental right of every patient to understand the nature and extent of the medical treatment required or recommended.
Whether a physician has met his or her duty to disclose certain information as a significant medical risk is determined by comparing the doctors actions, or lack of action, to an acceptable standard of professional care. If the physicians actions fall below the acceptable standard, then informed consent by the patient has not been obtained. That standard of care, in Nevada, is a professional standard under which a doctor has a duty to disclose information that a reasonable practitioner in the same field of practice would disclose. Smith v. Cotter, 107 Nev. 267, 272, 810 P.2d 1204, 1207 (1991). In Cotter, the Supreme Court of Nevada adopted a three-step process to assess liability. First, is a duty owed by the physician? Second, assuming a duty is owed, has that duty been breached by the treating physician? Finally, has the physicians breach of duty been the proximate or legal cause of the patients harm? To assess what duty existed, and if the acceptable standard of care criteria was met, the court will look to expert testimony, based on NRS 41A.100, to establish what actions are customary and accepted for the physicians given area of medical expertise.
Nevada Code Section NRS 41A.110 explains that informed consent of the patient can be conclusively established if the physician has provided the pertinent information and has obtained the signature of the patient on a statement or other consent form containing the explanation of the procedure, alternative treatment methods, and risks associated with each. The specific language of 41A110 is critical. The statute provides a physician, if he is to establish conclusive consent, must have:
- Explained to the patient in general terms without specific details, the procedure to be undertaken;
- Explained to the patient alternative methods of treatment, if any, and their general nature;
- Explained to the patient that there may be risks, together with the general nature and extent of the risks involved, without enumerating such risks; and
- 4. Obtained the signature of the patient to a statement containing an explanation of the procedure, alternative methods of treatment and risks involved, as provided in this section.
Many physicians, and some states, have standard forms to use when obtaining informed consent. While standard forms can provide the physician some degree of security through uniformity and standardized language, these forms can be deceptively dangerous as well. Physicians must take care to ensure that all relevant information is discussed with the patient, whether it is contained on the form or not. In order to ensure the maximum protection from liability, the physician should document on the form the specifics of his discussion with the patient, and review all the information on the form with the patient prior to obtaining a signature. Failure to accurately document in writing that all required information was discussed with the patient may serve to invalidate what the physician otherwise believes is conclusive consent. For instance, in Allan v. Levy, 109 Nev. 46, 846 P.2d 274 (1993), the treating physician failed to comply with the statutory requirements of NRS 41A110, and therefore, the signed consent form did not establish conclusive consent. Care in drafting will prevent this type of error from occurring.
While not required, the treating physician may consider having a witness present during the explanation of medical procedures or treatment and the patients corresponding signing of the consent form. Doctors must take care not to violate NRS 449.720 which requires that the patient must consent to the presence of any person who is not directly involved with his care during any examination, consultation or treatment.
INFORMED CONSENT NOT REQUIRED – EMERGENCY
There are at least two instances when neither express or informed consent may be required prior to rendering medical aid or performing a medical procedure. The first instance, emergencies, is addressed by NRS 41.505. Under NRS 41.505, physicians and nurses who either give instructions to emergency medical attendants, or who render emergency medical aid, will not normally be held liable for rendering, in good faith, such instructions or aid at the scene of an emergency or during transport from the scene of an emergency. The key elements of this statute are the emergency situation that exists or existed, the rendering of emergency services in good faith, and the absence of gross negligence. Even for emergency services rendered in good faith, if the services rendered constitute gross negligence under the law, the physician or other medical persons may be liable.
The other scenario that frequently arises, where a physician need not obtain consent prior to rendering medical services, is the situation of implied consent. As the term suggests, implied consent is not a conscious decision by the patient or legal representative to give consent, but rather a rule of necessity under which aid can be given without consulting the patient prior to the treatment or procedure. NRS 41A.120 outlines the conditions under which consent may be implied, both of which must be met. If, based on competent medical judgment, the proposed medical [or] surgical . . . procedure is reasonably necessary and any delay in performing such a procedure could reasonably be expected to result in death, disfigurement, impairment of faculties or serious bodily harm; and, a person authorized to consent is not readily available, consent to the medical procedure will be implied. Note that both elements of the statute must be met before consent will be implied. It is not enough for an emergency situation to exist. The physician must make a reasonable effort to ascertain if a person authorized to give consent is available. Also, the extent of the services rendered should not extend beyond the immediate emergency. Services rendered once the emergency has been abated likely would require consent of the patient or person authorized to give consent before proceeding.
Obtaining the consent of minors poses a different problem for physicians. For the most part, if the minor is capable of understanding the nature and proposed purpose of the medical procedure to be performed, the minor may give consent.
NRS 129.030 sets forth the general conditions under which minor may consent to medical treatment for both himself or for the minors child. There are four such conditions, at least one of which must be met:
- the minor is living apart from parents or legal guardians, with or without their consent, and has done so for at least four months;
- the minor is married or has been married;
- the minor is a mother, or has borne a child; or
- the minor is in serious danger of suffering a serious health hazard, in the physicians judgment, if treatment is not provided.
It is interesting to note that the statute does not discuss how the treating physician is to verify the status of the minor, or the extent to which the physician must attempt to verify status. Under NRS 129.030(3), however, the physician is required to make prudent and reasonable efforts to obtain the minors consent to communicate with the minors parents or guardians. This reasonable effort is required unless the physician determines that communicating with the parents or guardian to the minor will jeopardize treatment necessary for the minors life, or to avoid a serious and immediate threat to the minors health. The physicians efforts, whether they be to obtain permission to contact the parents or not, must be documented in the treatment record. Presumably the same type of effort, a prudent and reasonable attempt, would be required to verify the status of the minor. It is advisable for the physician to clearly state in the file of the case the means by which he or she verified that the minor met one or more of the criteria listed in NRS 129.030.
Before a minor can give his or her consent to medical treatment, the minor must demonstrate that he or she understands the nature and purpose of the proposed treatment or examination, and its likely outcome. The request for medical treatment by the minor must be voluntary. This requirement under the statute essentially mirrors the informed consent requirements for adults, and the physician is well advised to document the consent given by the minor in the same manner, and to the same degree, as with adult patients.
With the treatment of minors, one issue is always in the forefront is — who is responsible for payment for the minors care and treatment? Under NRS 129.030, the parent or legal guardian of the minor is not required to pay for medical services rendered pursuant to this statute. Only in the case of an emergency situation, where consent is implied, may the parent or guardian be required to pay. Patients who are minors often do not have health insurance coverage. The issue of how the medical bills will be paid must be considered and addressed with the patient in all but the most extreme circumstances.
In Loco Parentis – Emergency Situations
Nevada law provides for the rendering of emergency medical treatment to minor patients without the consent of parent or guardian. If emergency treatment or surgery is required, and the treating physician has exercised reasonable [but unsuccessful] efforts made under the circumstances to locate the parents and obtain consent, any person standing in loco parentis for the minor may authorize the treatment. NRS 129.040. Presumably, as with other emergency situations addressed under the Nevada code, the treatment rendered should only extend to the emergency itself, and once the emergency has been abated, parental or other consent should be obtained before proceeding further with treatment.
Abuse by a Minor of Controlled Substances – Treatment
A minor under the influence, or suspected of being under the influence, of a controlled substance can give express consent if able to meet the criteria discussed above. NRS 129.030. If, however, the minor is unable to give consent because he or she does not understand the nature of the treatment being offered, the minor, if under the influence of a controlled substance, shall be deemed to have given consent if the care provided is for the treatment of the abuse of drugs, or a related illness. Under NRS 129.050, the treating physician or facility is immune from liability for rendering such treatment, assuming the absence of a negligent diagnosis in the first place.
Treatment for abuse of a controlled substance is one of the few situations where the physician is required to make reasonable efforts to locate the parents or guardians, and report the fact that treatment for drug abuse was given to the minor. In most other instances, the physician must have the consent of the minor patient before attempting to contact the parents. Contact with the parents must be made within a reasonable time after treatment. Presumably, once the short term impact of the drug abuse or related illness has been eliminated, a minor that otherwise qualifies under NRS 129.030 (discussed above), may consent to further treatment without the permission of a parent or guardian.
Sexually Transmitted Diseases/Communicable Diseases
The right to privacy with regards to ones sexual activity and related medical concerns extends to minors as well as adults. With regard to the treatment of a minor for sexually transmitted or communicable diseases, the minor may be examined and receive treatment without the consent of a parent or legal guardian. The right to treatment encompasses the right to privacy, and it is against the law in Nevada for any person to make public the name or other identifying information of a person infected with a communicable disease.
NRS 129.060 & NRS 441A.230.
Interestingly, Nevada law also permits the health authority to require (except as otherwise noted in NRS 441A.210) a minor to undergo examination and treatment, whether or not the minor, or his parents, has given consent to such treatment. The practical implications of requiring treatment absent consent can be burdensome, given informed consent laws, among others. In addition, enforcement of this statute, NRS 441A.310, while simultaneously complying with other requirements regarding informed consent, can be onerous. How this impacts treatment by private physicians is not clear, and physicians are advised to contact the state health authority if a situation arises regarding a minor who has a communicable disease and refuses to consent.
With regard to sterilization, the law in Nevada still prohibits a minor from consenting to sterilization. NRS 129.030 (6). In the rare instance of a minor requesting sterilization, consent by a parent of legal guardian must be obtained. Even with consent by a parent or guardian, sterilization of a minor should only be undertaken in order to save the life of the minor, or treat serious and potentially life threatening illnesses or injuries.
CONSENT FOR SPECIFIC PROCEDURES / RELEASE OF INFORMATION
In addition to the general rules concerning informed consent by a patient, there are numerous specific medical procedures addressed by statute. For the most part, these procedures deal not with emergency situations or treatment for illness, but with voluntary procedures not required for the health and well being of the patient. In these cases, the physician should ensure that the general requirements for receiving and documenting conclusive consent are met, as well as the specific requirements for a given procedure. As always, the physician should document every discussion, not just the consent given.
NRS 442.252 and 442.253 are very specific with regard to the steps a physician must take to obtain consent prior to performing an abortion. The language of these two statutes is as direct and firm as any in the code, and physicians must comply. The exact language of the codes should be incorporated into any consent form used, and the physician should seek legal review of any standardized form prior to using the form with a patient.
NRS 442.253 talks in terms of informed, written consent, and uses language not found in other statutes on consent. It is clear that consent for an abortion must be given freely and without coercion. Whenever the legislature has taken the time and effort to detail such requirements in a statute, especially one requiring written verification that the elements of the statute have been met, the specific language is important. NRS 442.252 also requires the treating physician to certify in writing the age and marital status of the patient (woman) based on proof of age offered by the patient. The statute does not dictate how proof of marital status is to be established. Presumably, a valid marriage certificate or license would serve to establish the marital relationship, and the written testimony of the patient would serve to establish the lack of such a relationship.
There are very specific topics that must be discussed with the woman prior to performing an abortion. The discussion must be one that is reasonably likely to be understood by the patient, and must include:
- an assessment by the physician that, in his or her professional judgment, the patient is pregnant, and that a copy of the pregnancy test is available if desired;
- the estimated number of weeks that have elapsed since conception;
- the physical and emotional implications of having an abortion; and,
- the procedure to be used and its possible or probable consequences, as well as the proper treatment required after the operation.
In addition to the requirements detailed above, the physician is directed to verify in writing that the necessary information has been provided, and that the consent given has been informed consent. The statute, NRS 442.253, also addresses the requirements for non-English speaking patients. With regard to non-English speaking patients, the form used must be in the patients native language, and if an English form is used, the physician must certify that the information required by law has been presented in an understandable manner. The use of an interpreter is allowed, and the physician must reference such use, and name the interpreter, on the consent form. This statute is the only medical statute to use such language, which is an indication of the gravity of the procedure to be performed.
Abortion is quite obviously a very serious medical procedure. The physical and emotional needs of the patient are far greater than for most procedures. Physicians would do well to proceed slowly and cautiously through the process, assuming the physical well being of the mother is not of immediate concern.
As with abortion, artificial insemination is as much about the patients mental state as it is her physical care. Consent in the area of artificial insemination takes on a slightly different twist. The rationale for seeking and receiving consent focuses on the husband in a marital relationship, and his legal rights. If a woman is a wife and she is artificially inseminated, and if the semen is from a man not her husband, and if the husband has given written consent, and if the consent form is signed by both the husband and wife — the husband is treated, legally, as the natural father of the child subsequently conceived. NRS 126.061. The physician has certain duties with regard to verifying the signatures and filing the consent form with the department of human resources. However, the physicians failure to do so will not nullify or otherwise affect the rights of the father.
Breast Implant Surgery
Breast implant surgery is a voluntary procedure that does not address an illness, injury or recognized physical disability of a patient. As such, the requirements for consent are both more complex, and at the same time, more simplistic, than with other medical procedures. The language of the statute, NRS 449.740, is very specific with regard to who may, or must, give informed written consent. Obviously, patients over the age of 18, that are not otherwise the ward of a legal guardian, may give consent. Minors under the age of 18, if not legally emancipated, require the consent of a parent of guardian. Mental incompetents, regardless of age and under the care of a legal guardian, must have the informed consent of the guardian. The information that must be provided the individual giving consent includes:
- a) nature and consequences of the procedure;
- b) the reasonable risks, possible side effects, benefits and purposes of the procedure; and,
- c)alternative procedures available.
The law with regard to breast implants is different for a number of reasons. The statute, NRS 449.740, specifies a period of time within which the consent must be given (within 5 days of the scheduled procedure). Additionally, the statute specifically addresses withdrawal of consent, and allows for withdrawal right up until the moment the procedure is performed. This provision is no doubt in deference to the voluntary, and cosmetic, nature of the procedure. Most interesting of all, perhaps, is that the law provides for, and in fact encourages, the use of a standardized, pre-printed informational and consent forms provided by the health division. The physician is deemed to have met the requirements of NRS 449.740 for informed consent if the individual authorized to give consent has been provided a copy of explanation provided by the health division, and has signed the consent form provided by the health division. The specific information that must be included in the form, as well as the requirements for keeping the form current, are found in NRS 449.750 — Procedure to insert implant in breast of patient: Contents of explanation form and consent form; fee for forms. As the title indicates, there is a mandatory fee that the physician must pay in order to obtain the forms from the state. None the less, physicians are advised to accept the assistance of the state. If future legal malpractice actions are instituted against the physician, use of this form may conclusively establish that the physician met all requirements for informed consent.
In the area of cancer treatment, informed consent addresses the right to privacy of the patient, as well as the care giver. Under NRS 457.250, certain physicians and health care facilities are required to report information concerning the treatment of cancer patients. NRS 457.270 requires, however, that the health division shall not reveal the identity of the physician, health care facility, and most importantly, the patient, unless prior written consent to such disclosure is given.
Donation of Blood
Under Nevada law, a person who has achieved their seventeenth (17) birthday may donate blood without the consent of a parent or guardian. However the person donating may otherwise not be able to give consent, if required, for procedures or treatment necessitated by injury resulting from the blood donation. The prudent physician will ensure that he or she is able, if necessary, to contact the person legally authorized to give consent to medical treatment for the underage donor.
Genetics is a specialized area currently on the fringes of conventional medical treatment. There are very specific requirements with regard to obtaining genetic information, NRS 629.151; retaining genetic information, NRS 629.161; disclosing genetic information, NRS 629.171; obtaining informed consent regarding genetic information, NRS 629.181; and the penalties associated with failure to comply with NRS sections 629.151-181.
The complete language is contained in Appendix A – Applicable Nevada Statutes at the end of this chapter. Not surprisingly, informed consent is required at every step of the process, unless superceded by the needs of the state as defined in the applicable statutes. NRS 629.151-181 cross-reference to other sections of the Nevada code which provide for obtaining, retaining, and disclosing genetic information to meet the objectives of criminal or other investigations or proceedings. Physicians involved in genetic research should consult the applicable code sections to ensure compliance with the consent requirements.
Life Sustaining Treatment
Declarations concerning the rendering or withholding of life sustaining treatment strongly implicate consent. Directions to the treating physician to withhold or withdraw life sustaining treatment can be initiated by the patient in one of two ways. First, a patient meeting certain criteria may execute a declaration at any time governing the conditions under which the physician may or may not withhold or withdraw treatment. Second, in the absence of a declaration, or for patients no longer able to decide for themselves, consent to withhold or withdraw life sustaining treatment may be given either by the patient or by a designated group of individuals.
Under NRS 449.600, a person of sound mind and 18 or more years of age may execute a declaration governing the withholding or withdrawal of treatment. As with all consent forms, the declaration must be signed (although it may be signed by a designated representative of the declarant), and in addition, be attested to by two (2) witnesses. This requirement for witnesses is unique in the area of medical consent; however, as discussed previously, physicians may often desire to have witnesses when obtaining consent for any number of procedures discussed in this chapter.
Any competent patient may make his or her own decisions concerning life sustaining treatment. NRS 449.624. Two specific situations are addressed by the statute. The first is the rendering or withholding of artificial nutrition and hydration by way of the gastro-intestinal tract. This type of treatment is deemed by law to be life sustaining, and must be withheld from a patient requesting in general terms the withholding or withdrawal of life sustaining measures. If no declaration is on file with the physician, these measures may not be withheld without the consent of an legally authorized family member or representative.
The second modification to the qualified patient rule is with regard to pregnant patients. If it is probable, in the professional opinion of the attending physician, that the fetus will develop to the point of live birth, then life sustaining treatment may not be withheld regardless of the declared wishes of the patient. NRS 449.624 (4).
Patients No Longer Able to Give Consent
Written consent to withhold or withdraw life sustaining treatment may be given for patients otherwise unable to give consent themselves if:
- i. the consent is given by the class of persons identified in the statute;
- the patient is terminal and no longer able to make decisions regarding their treatment;
iii. the consent is witnessed by two persons.
The list of persons authorized to give such consent is a prioritized list, beginning with the spouse, then moving through the: adult child or majority of the adult children reasonable available; parents of the patient; adult siblings or a majority of adult siblings reasonable available; nearest other adult relative by blood or adoption. Consent must be in good faith, and the decision of the attending physician, with regard to good faith consent, is conclusive. As with consent by the patient themselves, if the patient is pregnant, treatment cannot be withheld if the fetus will likely live to term.