1. Mental Capacity, Informed Consent & Health Care Treatment Dallas Bar Association Health Law Section February 15, 2012
Robert Gordon JD, PhD
Forensic & Clinical Psychology
One Galleria Tower, Dallas

2. Avoiding and Defending Complaints and Lawsuits

3. Physicians & Hospitals
Hospitals – CMS Committee on Medicare and Medicaid Services

4. Googlephilia

5. Med Mal Ad Campaigns

6. It's not enough for you to merely sign your name or say "Yes
It's not enough for you to merely sign your name or say "Yes." You must give informed consent. You need to be told about and understand many things before treatment begins, including:
The name of the doctor performing the procedure and his qualifications
Your medical condition
The purpose of the proposed procedure
The risks involved
Any alternative treatments or procedures and the risks involved
The chances of the procedure's success
The expected recovery time
The approximate cost of the procedure and whether it's likely covered by your health insurance
You must also have a chance to ask the doctor questions and to talk things over with family if you want.

7. Consent
The Cornerstone of patient rights. AMA, Patient Bill of Rights.
Consent must be:
Voluntary
Competent
Informed

8. Forms of Consent The Med Mal Witness
Verbally
In writing
One’s actions
By inference in emergency situations
To prevent death or serious injury

9. What is Informed Consent?
Describes the recommended treatment or procedure
Explains the risks and benefits
Refers to alternate treatments, risks and benefits
Says the likely result if no treatment given
Forecasts the probability of success and definition of it
Explains the length and challenges of recuperation
Discusses other relevant information

10. Other Important Factors
The law presumes a person is competent to consent to health care.
The challenge comes:
when the patient or family disagrees with treatment or
When the patient refuses treatment

13. Other Disclosures? Physician Owned Hospitals HealthGrades.com
Law Suits and Complaints
Drug Company Perks
Drug Substitutes: Botox Cases- GR Allergan Inc.
Qui Tam Cases

14. Doctor As Witness
Conrad Murray MD. No Informed Consent.

15. Texas Administrative Code Title 25 Section 6.01
Texas Medical Disclosure Panel
Decides the degree of disclosure required and the form of the disclosure
3 attorneys
6 physicians
Following its procedures creates a “rebuttable presumption” that everything was done properly.

16. List A: Full Disclosure
Anesthesia: General, Spinal, Conscious Sedation
Surgery: Coronary bypass, valve replacement
Non Surgery: Angioplasty, stents, pacemakers.
Diagnostic Procedures: Cardiac catheterization, contrast nephropathy

17. List B: Not Full Disclosure
Anesthesia
Cardiovascular
Digestive
Ear
Eye
Integementary system
Male genital system
Maternity and intrauterine
Nervous system
Radiology
Respiratory
Urinary system
Psychiatric
Radiation therapy
Endoscopic surgery
Pain Management procedures

18. Age Minority: Inference
Chapter 129. Texas Civil Remedies Code
Younger than 18.
Minority continued after 18.

19. Assessment of Older Adults ABA/ APA Handbook. 2008.
1. Cognitive Assessment
2. Functional Assessment
3. Psychiatric & Emotional
Assessment

20. Diminished Capacity Age- Related Cognitive Decline
Delirium, Dementia, Amnestic and other Cognitive Disorders
Mental retardation, schizophrenia and major depressive disorder
Medical power of attorney

21. Invalid Consent Patient doesn’t understand meaning of information
Patient has been misled
Patient has diminished capacity due to cognitive or emotional problems
Patient can’t physically give consent
This does not automatically mean there is incompetency to consent. An incompetent person may still refuse treatment- e.g. meds. Incompetency and capacity can be different.

22. Consent Issues Is there a legal guardian?
Informally, does the patient’s family agree?
Are there other legal, moral and ethical issues for competency and guardianship?
Organ transplant issues- relationship between the donor and patient
Emancipated minors and exceptions
Child’s life in danger. Parent refuses consent.

23. Malpractice Law Suits Personal Injury Lawyers Advertising for Clients
Doctor Patient Relationships
Lawsuit Clearing House Interviews
The Med Mal Insurance Question
Caps on Punitive and Intangibles
Fine Print Allegation

24. Defenses & Standards Defenses Standard of Care Known risk
Unforseeability
Mistakes vs. Negligence
Patient refuses to participate in explanation
Standard of Care
Community standard
Professional standard
Reasonably prudent patient

25. Doctor As Witness Deposition and Trial / Informed Consent
The Image of Health Care Professionals
Whose The Audience?
The Jury Trial
Who Has the Right to Settle?
One’s Good Name
The Fear Factor

26. Material Risks and Success
One that might cause a reasonable patient not to proceed
What’s the magnitude of the risk?
Problem areas: Plastic surgery and vasectomies

27. Assessment of Older Adults
ABA/ APA Handbook
Functional Assessment
Cognitive Assessment
Psychiatric & Emotional Assessment

28. Common Cognitive Domains
Appearance
Sensory Acuity
Motor Activity
Attention
Memory
Communication
Understanding
Arithmetic
Reasoning
Visual- Spatial

29. Cognitive Tests Mental Status: Full and Mini Neuropsych Exam
Interviews:
ACCT Assessment of Capacity for Treatment
CAT Capacity Assessment Tool
CCTI Capacity To Consent to
Treatment

30. Brain Map

31. fmri

32. 3Cs - Rapport
Competence
Confidence
Caring

33. Mental Capacity, Informed Consent & Health Care Treatment Dallas Bar Association Health Law Section February 15, 2012
Robert Gordon JD, PhD
Forensic & Clinical Psychology
One Galleria Tower, Dallas