Medical Malpractice and Lack of Parental Consent
Getting necessary medical treatment for one’s child is part of being a parent, and not generally associated with medical malpractice. As children are prone to contracting illnesses on a frequent basis, as well as finding new ways to hurt themselves, trips to the doctor are a common occurrence. While a child is underage, parents have complete authority to make decisions about their medical care, and medical procedures generally require informed consent before a doctor may proceed. Informed consent is necessary for both adults and children, but getting the necessary permissions for a child is not always straightforward. However, medical treatment cannot legally proceed in most cases without this consent, and if treatment is administered anyway, a doctor could be liable for medical malpractice. Informed consent relates to a doctor’s duty of care to treat a patient, a key component of any malpractice claim. A discussion of how the doctor/patient relationship is formed, and rules governing treatment to minors, will follow below.
Doctor/Patient Relationship
Generally, doctors are not automatically required to treat everyone that walks through their door. A voluntary relationship must typically be formed before a duty of care to a patient is owed, which imposes an obligation on the doctor to adhere to professional standards when deciding how to treat a patient. Basically, a doctor is expected to use the level of care that others with the same skill and experience would use a in a similar situation. Part of establishing this doctor/patient relationship is providing informed consent before testing, surgery, exams or other types of treatment are performed. Lack of consent for medical treatment is traditionally associated with nonconsensual touching, similar to battery, so patients are extended the right to be informed about the possible risks and benefits of treatment before anything is done. For informed consent to exist, at a minimum, the following must be disclosed to the patient:
- the nature of the proposed treatment, and any available alternatives;
- the risks of the procedure; and
- the risks of doing nothing.
Consent is usually provided orally or in writing, and can also be implied if the patient’s conduct expresses a willingness to undergo treatment, or the person is unconscious and no family member is present to consent. Failure to obtain informed consent outside an emergency situation is a form of medical malpractice, and could subject the doctor to legal liability.
Parental Consent
As noted above, parental consent is normally required before administering medical treatment to a minor child. Complications related to obtaining this permission arise when the child’s parents disagree about a proposed course of treatment, or the child is brought to a medical facility to address an emergency situation. Florida courts have addressed whether the consent of both parents is necessary to perform a medical treatment, and have held that the consent of one is sufficient to move forward. The rationale for this decision is that medical providers would be put in the middle of family disputes if the permission of more than one parent was necessary. Further, a Florida statute specifically addresses providing medical treatment to a minor in an emergency situation, and permits medical personnel to provide aid if delaying treatment would endanger the child’s health or well-being. However, this law only applies if the child cannot communicate a parent’s name, and the person bringing the child in does not know this information. Further, the reason for the lack of consent must be included in the child’s record, and be made available for the parent’s inspection upon request. Even if the proper protocol is followed, if something goes wrong, a medical malpractice attorney should be consulted about possible legal options.
Contact a Florida Medical Malpractice Attorney
Medical treatment is a necessary, but not always harmless, fact of life. If you were harmed by a medical procedure or poor medical care, contact the Miami law firm of Pita Weber Del Prado to discuss your injury. We have the experience and resources to build a strong case to get you the compensation you deserve. Contact us for a free consultation.
Resources:
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0766/Sections/0766.102.html
leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0743/Sections/0743.064.html
