A This really is an area in which the realities of modern
life seem to be at odds with the law. Finding the best legal course may be a
matter of classic risk management: balancing competing interests and rights
as well as looking at the possible economic liability result from a
successful lawsuit.
For many years, minors could not get medical treatment,
except in an emergency, without clear, unambiguous consent from a parent or
guardian. In the last 20 years, states have enacted a variety of laws that
permit minors to access medical care for serious conditions (e.g., mental
health, HIV, pregnancy, and STDs) without parental consent. It is reasonable
to assume that a minor capable of consenting to abortion should be able to
consent to routine phlebotomy, but most legal pundits would disagree. Those
precise conditions — pregnancy or HIV — create an exception to the need for
parental consent for treatment of a minor; they do not abrogate it.
Another exception to the need for parental consent is the
emancipated minor. Emancipation is a formal legal action freeing the minor
child from oversight by the adult parent. Emancipated minors can assume most
of the legal rights of adulthood, including the right to enter into
contracts and consent to medical care, and will be able to provide court
documents to verify their status.
In all other cases, for routine medical care, the consent
of a parent is almost certainly required to treat a child. Failing to obtain
consent when it is required exposes the healthcare provider to legal
liability in both malpractice (for failing to adhere to standards of care)
and, in some cases, medical battery as well (for unconsented touching and
treatment of another person). While usually not a huge legal risk, enough
cases of “failure to obtain consent” on the books confirm the legitimacy of
liability concern. Under strict interpretation of law, failing to get
required consent from a category of its patients would make defending a case
against an institution difficult.
Phlebotomy presents an interesting legal middle ground.
Generally, for adults capable of giving their own consent, voluntarily
submitting to phlebotomy is considered implied consent except in certain
narrow circumstances, such as genetic or HIV testing. Implied consent for
blood testing cannot be extended to the minor because the parent is required
to consent. That a parent who drops a child off for phlebotomy has implied
consent is arguable, but the lab staff has no reliable way to know those
circumstances and, thus, assume consent.
It appears that consent is required; the question
then becomes, whose duty is it to obtain and document consent? A
reasonable argument is that the doctor treating the patient is
responsible, which is generally true. From this comes the notion that
the physician’s order implies that he has obtained the requisite
consent.
A growing body of law indicates that institutions may
also share in the responsibility to obtain proper consent for treatment
undertaken under their aegis. When an institution takes a central role
in delivering care (e.g., operating room or institutional clinical
trials), it may have an obligation to obtain proper consent. Routine
phlebotomy does not generally rise to the same level as open-heart
surgery or a clinical trial of the newest chemotherapy regimen. Like
those procedures, however, the hospital plays a central role in the
process; and the patient relies on the expertise and experience of
hospital employees.
That reasoning leads me to conclude that there is
some obligation on the part of the hospital to assure that routine
phlebotomy on unaccompanied minors is done only with parental consent.
This conservative view may create difficulty in daily practice but does
have the salutary effect of eliminating a cause of action in battery, as
well as the argument that the lab bill need not be paid because the
child had no authority to consent to testing, and the parent himself did
not.
With planning and cooperation from physicians
ordering the tests, you should be able to create a system that works
smoothly for all. Query the physicians who are most likely to have
unaccompanied minors as patients about the best way to integrate
obtaining consent for phlebotomy procedures. Keep in mind that, in this
circumstance, consent may be given in advance of the actual phlebotomy.
A parental consent form may be provided and kept on file for patients
with regular blood tests or may be presented at the time of a single
occasion. Depending on your state laws and your institutional
preferences, you may also wish to obtain consent only for a definite
period or for particular tests.
Try to ensure that parental signatures are valid; a notarized
document provides better protection from fraudulent documents than one
that is merely signed or witnessed. When a patient appears with a valid
order and no consent on file, consult your institutional attorney about
obtaining immediate, one-time consent by phone, fax, or e-mail.
Barbara Harty-Golder is a
pathologist-attorney consultant in Chattanooga, TN. She maintains a law
practice with a special interest in medical law. She writes and lectures
extensively on healthcare law, risk management, and human resource
management.
MLO’s
“Liability and the Lab” is intended to provide risk management and human
resource management education; it is not intended to provide specific
legal advice. If you require legal advice, the services of an attorney
should be sought. Dr. Harty-Golder welcomes your questions, which can be
sent to her at
[email protected]. Unless
otherwise noted as “confidential” by readers, all queries will be
considered for publication without further notice to them. Names,
institution, city, and state will be removed before publication.
