Resources

Client Alerts, News Articles, Blog Posts, & Multimedia

Everything you need to know about BMD and the industry.

Obtaining Patient Consent

Client Alert
October 4, 2023

Patients have autonomy to choose what can and cannot be done to their bodies. Therefore, informed consent is required before any treatments or procedures commence. This is a stark contrast to the previously recognized paternalistic approach, which relies solely on the decision-making of the provider.

However, in order for patients to really choose whether or not to submit themselves to a particular healthcare service, they must actually understand what the service is. Therefore, patient consent should help the patient understand the risks and benefits, as well as any alternative treatment options.

Obtaining Consent

Merely having a patient sign an informed consent is not enough for a patient to consent. Rather, providers should have an active dialogue with patients, which starts with explaining a diagnosis, the proposed treatment including its benefits and risks, and any alternative treatment options and their benefits and risks. Providers should allow patients to ask any clarifying questions they may have. Only after this dialogue can a signed consent be obtained.

While some states recognize verbal consents as valid, others require that patients sign an authorization form to show that consent was actually obtained.

Capacity to Consent

Even if a provider engages in a dialogue with a patient clearly laying out the patient’s diagnosis, treatment options, and benefits and risks, some patients still cannot consent due to lack of capacity. If a patient cannot understand or appreciate the benefits, risks, and alternatives, or cannot demonstrate reasoning in their decision-making, the patient likely does not have capacity to give a valid informed consent. One way to determine whether a patient has capacity is to have the patient restate in their own words what they understood about the dialogue with their provider.

Further, while minor patients may seem to have capacity, they are incapable of providing informed consent (although there are some exceptions in states where the minor is emancipated or is being treated for specific illnesses, such as sexually transmitted diseases). Therefore, consent to treat minors will generally require a parent or guardian’s signature. 

Penalties

Failure to adequately obtain informed consent may result in consequences, including but not limited to medical malpractice lawsuits, loss of hospital privileges, or removal from preferred provider lists.

If you have any questions regarding patient consent in general, or whether your current process for obtaining informed consent is compliant with applicable state and/or federal law, please don’t hesitate to contact BMD Health Law Group Member Jeana M. Singleton at jmsingleton@bmdllc.com or 330-253-2001, or BMD Attorney Rachel Stermer at rcstermer@bmdllc.com or 330-253-2019.  

Patient ConsentHealth LawHealthcare Policy
Client Alert

President Biden Seeks to Limit Non-Compete Agreements

July 8, 2021Today, President Biden announced he would issue an Executive Order that calls on the Federal Trade Commission (FTC) to adopt rules to curtail worker non-compete agreements. Interestingly, a week ago, the FTC approved changes to its Rules of Practice to modernize and expedite the way it issues Trade Regulation Rules. If you have followed our alerts, we predicted the elimination of non-competes would probably happen. In 2016, then-Vice President Biden was a vocal opponent against non-compete agreements. He led the Obama administration’s initiative seeking to limit or eliminate non-compete agreements. In his presidential campaign, Biden promised to “work with Congress to eliminate all non-compete agreements, except the very few that are absolutely necessary to protect a narrowly defined category of trade secrets . . ..”Client Alert

New NIL Opportunities for Student-Athletes Require Diligent Review

July 8, 2021On June 28, 2021, Governor Mike DeWine signed Executive Order 2021-10D, “Establishing the Duties of Colleges and Universities as to Name, Image, and Likeness Compensation of Student-Athletes.” The Executive Order was motivated by the passage of similar name, image, and likeness (“NIL”) regulations in seventeen (17) other states; Ohio followed suit to avoid a significant competitive disadvantage in attracting student-athletes to the state.Client Alert

Tax Savings Potentially on the Chopping Block under President Biden’s American Jobs Plan and American Families Plan

June 18, 2021Recently, President Biden has proposed several tax law changes in his American Jobs Plan and American Families Plan. Outlined below, are a few of the tax savings that could be significantly changed or eliminated under Biden’s plans.Client Alert

Here are the Final Candidates for Mayor of Cleveland

June 17, 2021Earlier this year, current Cleveland Mayor, Frank Jackson, announced he would not run for re-election this fall. With no need to beat an incumbent, the Cleveland mayoral race suddenly became competitive. Thirteen individuals declared their intent to run for mayor. The City of Cleveland, however, has a difficult qualification requirement to run: 3,000 valid signatures from Cleveland residents. The deadline to file a petition to run, with the 3,000 valid signatures, had to be submitted by June 16 (yesterday).Client Alert

What Happens to a Pandemic Stimulus Payment Upon Death?

June 14, 2021On January 1, 2021, the federal government issued stimulus payments (also known as Economic Impact Payments) to American citizens – on paper. However, many of the stimulus payments were not received until several months later. Sometimes the stimulus payments did not arrive until after an individual died.
Older posts
Newer posts