When should medics be liable for their practice? (Part six)

Elements of negligence: informed Consent, abandonment

This is a carefully researched and penned article on one of the hot subjects in the field of law and medicine—medical malpractice. It is in seven parts to enable the reader keep track of its flow

By Isaac Bizumuremyi

In normal circumstances, the element of lack of informed consent is separated from the element of lack of due care.

This occurs when a doctor fails to provide a patient with sufficient information regarding their treatment to enable him or her to make an informed decision.

Such failure constitutes lack of informed consent.

A claim for more aggravated misconduct known as battery (an intentional causation of harmful or offensive contact with another person without that person's consent) can also arise when there was no consent whatsoever to a particular procedure or treatment of a portion of the body.

The negligence factor associated with the element of lack of consent, stems from a duty of every physician to the patient to make a reasonable disclosure of available choices with respect to a proposed treatment option and of the significant or common dangers potentially involved with each choice.

Failing to provide such disclosure creates a basis for a claim of lack of informed consent from negligence perspective.

For this ground (lack of informed consent) to succeed, the claimant must prove that the doctor failed to provide adequate information to enable the patient to make an intelligent choice regarding the course of treatment.

The claimant must also prove that any reasonable patient would not have consented to a given course of treatment or procedure, had the appropriate and pertinent information been disclosed.

It is important to note the type of consent—it is not a mere consent (blanket consent) but rather, an informed consent.

A verbal informed consent alone does not carry greater weight, and neither is a written consent alone sufficient.

Both are recommended and the disclosure should be sufficient for the patient to make an informed consent.

There are about three legal approaches to adequate informed consent as was highlighted by Parth Shah, Imani Thornton, Danielle Turrin, and John E. Hipskind in their full article on informed consent on 22^nd August 2020.

The first is Subjective standard which is about what would a patient needs to know and understand to make an informed decision.

The second is Reasonable patient standard or what would the average patient need to know to be an informed participant in the decision.

The third is Reasonable physician standard which answers the question of what would a typical physician say about the administered procedure.

A physician being a professional to the patient is well placed under duty to establish which approach best suits the patient leaving other factors constant.

The element of abandonment

Abandonment of a patient by a doctor, constitute an act of professional negligence, and a doctor is a liable for damages if the patient makes a claim.

Gittler and Goldstein argued that once the physician or other health care practitioner undertakes the responsibility of treating a patient, the physician has a duty to continue that treatment as long as immediately necessary, unless they mutually terminate the relationship, or the patient dismisses the physician.

For the physician to withdraw from a patient's care, the physician must give the patient due notice and ample opportunity to secure other medical attendants.

The Author, Isaac Bizumuremyi, is Managing Partner at Lex Chambers; a Corporate lawyer, Commercial Litigator, Transactions Advisor, and Commercial Arbitrator in Kigali Rwanda

Lex Chambers

06 KN 33 Street

Kiyovu, Kigali City, Rwanda

Email: isaac@lexchambers.attorney

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