Over the past month, there has been lots of news about the right of a terminally-ill person to end their own life. Currently, only five states have legalized aid-in-dying – Oregon, Washington, Vermont, Montana and New Mexico. Some concerns people have voiced concerning this type of law relate to medical malpractice, namely potentially increasing medical malpractice premiums as well as the use of the law by physicians who wish to cover up malpractice. The Oregon law is very specific in only allowing participation by Oregon residents who are competent adults and diagnosed with a terminal illness that will lead to death within six months, as determined by two doctors. The Oregon law also provides immunity for “civil or criminal liability or professional disciplinary action” for a person who participates “in good faith compliance with” the Oregon law. However, this means that a person who participates not “in good faith compliance” could be liable for damages and “good faith compliance” is a term that could be subject to interpretation.
Although North Carolina does not have an aid-in-dying law, a competent patient has the right to refuse medical treatment. North Carolina statute allows a patient to recover medical malpractice damages in certain situations where a health care provider does not obtain the patient’s informed consent prior to rendering treatment. Specifically, G.S. 90-21.13 states that
(a) No recovery shall be allowed against any health care provider upon the grounds that the health care treatment was rendered without the informed consent of the patient or other person authorized to give consent for the patient where:
(1) The action of the health care provider in obtaining the consent of the patient or other person authorized to give consent for the patient was in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities; and
(2) A reasonable person, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities; or
(3) A reasonable person, under all the surrounding circumstances, would have undergone such treatment or procedure had he been advised by the health care provider in accordance with the provisions of subdivisions (1) and (2) of this subsection.
In addition to the statutory provision for informed consent, there is also a common law doctrine of informed consent. The U.S. Supreme Court examined this doctrine and how it relates to a patient’s right to refuse medical treatment in the 1990 case, Cruzan v. Director, DMH. In Cruzan, the Court stated that “the common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment” and “[t]he logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.”
The Court’s review of prior decisions noted that a competent person’s right to refuse medical treatment stems from the Due Process Clause in the Fourteenth Amendment which “provides that no State shall ‘deprive any person of life, liberty, or property, without due process of law.’”
In examining a person’s rights under the Due Process Clause, courts must balance the person’s “liberty interests against the relevant state interests.” The relevant state interests in this situation is a state’s “interest in the protection and preservation of human life.” The Court assumed “that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.”
In looking at the situation of an incompetent person (as was involved in Cruzan), the Court concluded that
a State may apply a clear and convincing evidence standard in proceedings where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. We note that many courts which have adopted some sort of substituted judgment procedure in situations like this, whether they limit consideration of evidence to the prior expressed wishes of the incompetent individual, or whether they allow more general proof of what the individual’s decision would have been, require a clear and convincing standard of proof for such evidence.
In 1994, the North Carolina Court of Appeals looked at a case in which the plaintiff argued that the doctor did not obtain the informed consent of the patient (who was a Jehovah’s Witness) to give a blood transfusion. In Clark v. Perry, the doctor performed a procedure to help complications from the patient’s AIDS. After the procedure, the patient’s hemoglobin levels dropped. The doctor was notified of the drop over the phone and ordered a blood transfusion to be administered to the patient. The doctor who ordered the blood transfusion did not know that the patient was a Jehovah’s Witness and testified in his deposition that if he had known, he “would first have explained to him the consequences, the possible consequences of not taking [a transfusion]. And [he] would not have [ordered it] because he has the right, if he’s competent, to refuse any care.”
However, the court held that this statement in the deposition did not establish “the standard of care for obtaining informed consent in the circumstances of this case.” The court also noted that “even if [the doctor] had a duty to obtain [the patient’s] informed consent before ordering a blood transfusion administered to him, plaintiff’s evidentiary showing with respect to that alleged duty was insufficient.”
In particular, plaintiff presented no expert testimony tending to show whether [the doctor’s] actions were “in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities.” G.S. § 90-21.13(a)(1). There was no showing of what information about blood transfusions and their “usual and most frequent risks and hazards,” G.S. § 90-21.13(a)(2), would be, under the circumstances confronted by [the doctor], “customarily provided by other members of the same health care profession with similar training and experience situated in the same or similar communities….” A lay jury should not be left to speculate on the nature of a physician’s duty to obtain “informed consent” when the hemoglobin level of a dying AIDS patient drops substantially while he is unconscious or asleep and recuperating from surgery. Thus, as plaintiff did not meet her evidentiary burden with respect to the standard of care element of her negligence allegation against [the doctor] based upon failure to obtain informed consent, we hold the trial court properly allowed the motion for directed verdict thereon.
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