If a patient does not have capacity, another person may be designated to consent on the patient’s behalf. For a minor, the parents are usually the legal guardians and have the right to consent or refuse to give consent on behalf of the child.

Here is how a family physician described a recent case: “A 10-year-old was brought to my office for treatment of a dog bite of the hand. I diagnosed the child with compartment syndrome, R/O as cause of radial nerve palsy. After a call, a pediatric orthopedist at Hospital A felt the child should be seen right away. We decided to send the child to Hospital B to expedite a transfer by ambulance to Hospital A.

The parents did take the child to Hospital B’s emergency department (ED). But they refused consent for the ambulance transfer. A follow-up call to the patient’s home revealed that the child was taken instead to Hospital C’s ED. A call to Hospital C confirmed that the child was treated and discharged with antibiotics for an infection of the hand. I disagreed with the treatment.”

LEGAL ISSUES

Consent is not required in an emergency. If the family physician or specialists had thought the situation an emergency, they could have treated the child despite the parents’ objections.

For a minor, the needed treatment does not have to rise to the level of an emergency for a doctor to be able to render treatment without consent. The state has the right to override the parents under the doctrine of “parens patriae,” when the state may act as parent and give consent. Child protective services of most states can be called and will give consent, if needed.

For consent to be truly informed, a doctor must discuss with the patient or legal guardians not only the risks and benefits of the recommended treatment, but also the risks and benefits of the alternatives, including no treatment. Be sure to document the conversation in the medical record.

MALRPACTICE

In this case, whether a lawsuit is filed by the child’s parents and how well the doctors would fare depends in large part on how the child responds to the antibiotics. The best defense in a malpractice case is a good result.

In any malpractice lawsuit, the standard to which you are held is that of a “reasonable physician,” which is defined as what other physicians in your specialty would do in a similar situation.

In this case, there was a disagreement of medical opinion between the family physician and the specialist at Hospital C. If there is disagreement among physicians, they should explain their reasoning to one another and try to reach a compromise. They should document in the medical record their reasoning in a straightforward manner.

In the event of a lawsuit, expressed disagreements in the medical record can be used to advantage by a plaintiff’s attorney. Don’t malign your colleague’s position. Physicians can foment lawsuits by being unduly critical of other treating physicians.

FOLLOW-UP

A doctor has some obligation to follow-up on a non-adherent patient. The level of diligence required depends on your index of suspicion, the seriousness of the injury, and the capacity of the patient to make appropriate decisions. Since a child does not have capacity, the doctor may have more of an obligation to follow-up.

The family physician did a good job by calling Hospitals B and C, and the child’s parents. Remember to always document in the medical record any follow-up calls to a patient or a patient’s guardians.