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The legal requirement for obtaining consent before the rendering of medical care has always been tempered by the privilege to render emergency medical care without the patient's consent. This privilege is based on the theory of implied consent. The law assumes that an unconscious patient would consent to emergency care if the patient were conscious and able to consent. This is a "reasonable man" standard; that is the law assumes that reasonable person would want medical care in an emergency. The assumption of "reasonable" behavior is allowed only if the patient has not put the health care providers on notice that the patient refuses care. The health care providers may rely upon implied consent only in the absence of consent. Implied consent can never overrule the explicit rejection of medical care. This is very important for certain religious groups and can cause a great deal of confusion in an emergency room. There should be an explicit protocol to deal with persons with objections to medical care (as discussed later in this chapter).

What constitutes an emergency varies from state to state. The most limited definition requires the threat of loss of "life or limb" if medical care is withheld. Many states include the threat of serious permanent injury in the definition, an none would question the rendering of basic first aid (no cutting or sewing) to a person. The first aid distinction is very important because it is often necessary to stop acute bleeding and comfort the patient before the patient's wishes can be ascertained. If an injured patient has not actually refused medical treatment, the health care providers should be liberal in providing care.

Many providers are too stringent in their demands for consent to treatment, especially in the case of sick children. For example, some providers refuse to treat a child who is not accompanied by at least one parent. A legal analysis of a typical situation will illustrate the danger in this attitude.

The hospital emergency room is presented with a sick child accompanied by a neighbor. The parents are unavailable, but the neighbor pleads with the nurse on duty to get the child treated. The child's condition is serious, but the physician on duty cannot tell how serious without doing tests and beginning treatment. The hospital must decide either to treat the child or not to treat the child. If the hospital treats the child and the condition was (in hindsight) an emergency, there is no legal difficulty. If the hospital does not treat the child, and the child recovers uneventfully, there is also no legal difficulty.

The problem arises if the child is treated and there was no emergency, or if the child is not treated and there was an emergency. In the first case, assuming nonnegligent treatment, the parents could sue the hospital for unauthorized treatment of the child, but not for malpractice. The hospital could defend by showing that it was reasonable to believe than an emergency existed and that the treatment was beneficial. The parents must provide expert testimony to establish that there was no basis to believe an emergency existed. Most juries will be unwilling to assess damages against a health care provider for providing beneficial care in the good faith belief that an emergency existed.

It is the second situation that is much more likely to result in liability. In this situation, the hospital refuses to render care because there was no one available to give a legally binding consent. Let us assume that the child turns out of have a life-threatening condition and dies. The parents sue the hospital for failing to render care. The hospital must defend (assuming that care would have saved the child's life) by proving that it was not negligent in assuming that there was no emergency. Unfortunately, the death of the child will make this defense sound very weak. The jury will be presented with a dead child, a neighbor who will testify that he or she begged the hospital to treat the child, and a health care provider who tries to explain that the child was not treated because of a technically in the consent law. The health care provider will be in a very unsympathetic position with the jury. The law may be right, but the facts are wrong.

From a quality control point of view, the health care provider must always weigh the chance of harming a patient against the potential liability for deviating from the letter of the law. In most cases, the law is much more flexible about emergency care than health care providers realize. This is to be expected because of the public policy not to penalize health care providers for helping people. Unless the patient, or someone legally authorized to consent for the patient, specifically objects to the rendering of medical care, the court is very unlikely to assess damages against a health care provider who treats a person in the good faith belief that the person needs emergency care.

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