The Doctrine of Implied Informed Consent; Can Doctors Go Rogue?

I wouldn't call it rogue, but at times we do go it alone. In fact, I recently performed a medical procedure on a patient without obtaining formal informed consent.

• Was this a brazen violation of medical ethics?
• Should I be reported to the Ohio Medical Board?
• Could my action be considered as a criminal battery?

Hopefully, none of the 3 above inquiries will be responded to in the affirmative.

Obtaining informed consent for medical testing and treatment is a bedrock precept of medical ethics.  Patients are entitled to know the risks, benefits and alternatives to our proposed recommendations.    Too frequently, informed consent is regarded as a pro forma exercise.  Signing consent forms drafted by hospital attorneys may offer the hospital legal protection, but this is not obtaining informed consent as I understand it.   I have summarily signed my own medical consent forms without reading through the documents.  I surmise that many readers have done similarly. 

There are times when a simple signature really matters.

There are instances when a physician is ethically obligated to act when even when a formal informed consent cannot be obtained.   In certain cases, consent is implied. Consider these hypotheticals.

A man is brought to the emergency room with confusion.  No family is present.  The next of kin cannot be reached.   A CAT scan of the head shows a large bleed that pushing on vital structures in the brain.  Emergency surgery is expedited.

A 7-year-old child is seen by emergency physicians with fever, a characteristic rash and neck stiffness.  The child is on camping trip and was brought in by his friend's parents.  The doctors fear that he may have a deadly form of meningitis.  There is no contact information for the child’s family.  The doctors perform a spinal tap.

An elderly female falls and fractures her hip.  The woman is demented and is not capable of consenting to a medical procedure. The orthopedist is unable to reach any of the patient’s close relatives.  Since the doctor knows the hip needs to be fixed, he proceeds with surgery.

If you have not been skimming this post too quickly, you will undoubtedly have noted that one of the above 3 hypotheticals would represent an ethical breach.  Repairing a fractured hip is not a medical emergency, as was clearly present in the first 2 examples.  The surgeon should have deferred surgery until actual consent could be obtained from a family member or a legal guardian.   It is not enough that a reasonable person would agree with the treatment plan. If formal consent is to be waived, then the medical circumstances must be dire. 

There are medical scenarios when physicians are ethically charged to act in the absence of signed documents or an informed consent discussions.  Indeed, failure to act in such circumstances would constitute a grievous ethical transgression.  If a man on the street drops and needs CPR, there should be no need to consult a lawyer or an ethicist to know the right action to take.