Informed Consent in Louisiana – Lugenbuhl v. Dowling. Identify the elements of the legal citation- plaintiff, defendant, court, location of case etc.
This action was brought by a patient suing a physician for damages. The incident was allegedly caused by a doctor who did not comply with a patient’s request for using surgical mesh during repair of an incisional hernia. The jurisdiction is Louisiana and main allegations facing the court are first ‘whether the doctor, in view of the patient’s expressed desire that mesh be used in the surgery, properly informed the patient regarding the nature of the proposed procedure; its advisability and attendant risks with and without the use of mesh; secondly whether the plaintiff proved a causal connection between (a) either any lack of informed consent or the doctor’s failure to use mesh and (b) the damages awarded for the subsequent additional surgery’ (Supreme Court of Louisiana, 1997)
Further, supporting facts pertaining to this case relates that Dr. John Dowling; a general surgeon consented to repair an intercostal incisional hernia. There are two kinds of hernias involved in the patient medical history; first an inguinal hernia and then an incisional hernia. The inguinal hernia repair was conducted by anther surgeon whereas the incisional hernia repair is the case on trial. Besides, the plaintiff revealed an history of many hernia issues. He had several surgeries trying to correct the condition. There were three unsuccessful inguinal hernia repairs conducted by another surgeon during 1963 and 1974 prior to the one in which the surgeon performed a successful procedure in 1975 using surgical mesh. Due to this successful experience, the plaintiff requested that to Dr. Dowling in 1987 perform the surgery applying the mesh technique (Supreme Court of Louisiana, 1997).
Dr. John Dowling did not use the mess as was requested and the court ruled in favor of the plaintiff regarding Dr. Dowling’s ‘failure to disclose material information’ (Supreme Court of Louisiana, 1997), which should have indicated that the mesh would not be used after re-evaluating the case. Dr. Dowdling made a decision contrary to the patient’s request. Importantly, the surgeon betrayed the patient by giving the assurance that a mesh world be used, then changed the decision without prior consent. This conduct according to the court deserved that the plaintiff be awarded damages because of Dr. Dowding’s betrayal of trust; medical malpractice and acting against informed consent (Supreme Court of Louisiana, 1997).
Explain the meaning and importance of the doctrine of informed consent.
In health care the doctrine of informed consent pertains to obtaining prior permission before performing medical procedures on a patient. In some instances it can extend towards gaining permission to perform as well as not perform. Health care providers are expected to ask a patient’s permission to administer any type of therapy before executing it. In cases of clinical research the researcher for ethical reasons must obtain participants’ permission before enrolling them in a study. This informed consent is derived based on research protocol for the specific discipline guideline. Hence, the informed consent doctrine while it is a medical protective device whereby a patient/ client’s permission is obtained before performing any type of medical or associating intervention. In cases of research the doctrine is modified according to the specific interacting discipline. Clearly, research doctrine is interpreted according to that particular protocol (Faden & Beauchamp, 1986).
Discuss why we have this doctrine and what would happen if we did not.
The informed consent doctrine has a dual purpose. First it protects patients from receiving unnecessary treatments. In a health care climate where providers have the privilege of offering services to increase profits patients can very well receive unnecessary services. Secondly, informed consent limits this practice since patients must give consent for the services they receive or do not receive if it was requested of a health care provider. Subsequently, they are held accountable for the quality of care patients receive (McManus & Mehta, 2005).
If there is no doctrine of informed consent many patients would be billed for services they did not need neither receive. More importantly, they would be denied the privilege of participating fully in the care quality they receive from providers since they have the privilege of refusing or requesting (McManus & Mehta, 2005).
Discuss the two elements that must be present for informed consent to exist under the law.
Two important elements, which must exist for informed consent to be obtained, are the person must be an adult over the age of 18 years old; secondly he/she must be capable of giving consent by being of a sound mind or conscious. As such, patients who are minors, on ventilators or some psychiatric clients are not eligible to give consent (Katz & Capron, 2002).
In a legal case of negligence and liability explain why the basis for negligence may be battery, unconsented touching, or breach of a duty imposed on the doctor to disclose material information.
Often, especially, in child molestation cases or domestic violence involving spousal abuse when the victim does not comply with the abuser, negligence becomes a penalty for noncompliance. The tendency then is to continue the abuse with battery forcing victim’s consent. While, the doctor must obtain consent from a patient before disclosing material information if the court requests such information and the doctor refuses it could be considered a breach of duty. Negligence is often brought against adults including parents or legal guardians regarding children in their care. This scenario could be applicable to adults who cannot reason or give consent. A doctor who may have observed the negligence has the right to report the incident without prior consent. Failure to do so consist of breach in duty imposed on the doctor to disclose material information. Designated medical personnel have a mandatory obligation for reporting negligence and domestic violence without prior consent of the client or patient also (Katz & Capron, 2002).
Explain the elements that must be present for a patient to give informed consent.
Three elements that must be present for a patient to give informed consent are ‘disclosure, capacity and voluntariness’ (Faden & Beauchamp, 1986, p. 56). Disclosure obligates the health care provider or researcher to provide patients/participants with enough relevant information that would allow them to make an autonomous decision. At the same time this information must be presented for to facilitate easy understanding. clients must possess the capacity to clarify doubts before giving any consent. Consent could be given verbally in writing or by a group decision (Faden & Beauchamp, 1986).
Capacity relates to a person’s ability to internalize information tendered. Afterwards adequate judgment informing the consent could be made. Subsequently, the certainty that this decision is voluntary must be clearly established. The client/patient should not be manipulated, forced neither influenced through gimmicks into giving consent. For example, some agencies may offer incentives for giving consents such as money, gifts etc. (McManus & Mehta, 2005).
Faden, R., & Beauchamp, L. (1986). A History and Theory of Informed Consent. New York: Oxford University Press.
McManus, J., & S. G. Mehta (2005). Informed consent and ethical issues in military medical research. Academic Emergency Medicine 12 (11): 1120–1126
Katz, Jay; Alexander Morgan Capron (2002). The silent world of doctor and patient (Johns Hopkins Paperbacks ed. ed.). Baltimore: Johns Hopkins University Press
Supreme Court of Louisiana (1997). Lugenbuhl v. Dowling. No. 96-C-1575. Retrieved 8th September, 2013 from http://biotech.law.lsu.edu/cases/consent/Lugenbuhl.htm