The Treatment Relationship: Confidentiality, Consent, and Conflicts of Interest

1. The Treatment Relationship: Confidentiality, Consent, and Conflicts of Interest

2. Introduction • Implied terms of the physician-patient relationship • Good quality care • Treat with consent • Preserve confidences • Duty of loyalty • Suppose Lawstudent A tells Lawstudent B that she has a drug problem. • Must Student B treat this information as confidential (morally or legally) • If Student B tells the Dean, what would A’s rights be? • Suppose A is B’s patient. How would things change?

3. The Duty to Maintain Confidentiality—Doe v. Marselle-Page 190 • What are the facts of this case? • What does the statute provide? • What does the court hold?

4. Common Law and Statutory Duties to Maintain Confidentiality • Contract • Tort • Fiduciary duty • Fraud/Misrepresentation • Statute

5. Patient Confidences • What is the evidentiary privilege? • Is it available everywhere? • Is the duty absolute • Authorized vs. required breaches

6. The Duty to Breach Confidentiality • Mandatory reporting • Abused children, adults and disabled persons • Trauma likely resulting from crimes • SDT, including HIV • Report to • Law enforcement personnel • Public health authorities • Is mandatory reporting justified?

7. The Duty to Breach Confidentiality—Bradshaw v. Daniel-Page 207 • What are the facts of this case? • What does the court hold?

8. Confidentiality and the Risk of Aids, Problem Pg. 212 • Does the Center’s form contain a binding promise? • What relevance would the statute cited in Marselle and the federal statute on page 195 have on the problem? • Is there a way the Doctor could disclose? • What liabilities for • Disclosure • Nondisclosure

9. Functions of Informed Consent The informed consent doctrine rests on the assumption that the knowledge differential between the physician and the patient largely explains why doctors are so powerful and patients so vulnerable in the doctor-patient relationship. The patient’s best protection comes from a sort of required information exchange from physician to patient

10. Protect individual autonomy Protect the patient’s status as a human being Avoid fraud and duress Encourage doctors to carefully consider their decisions Foster rational decision-making by the patient Involve the public generally in medicine Functions of Informed Consent Capron, Informed Consent in Catastrophic Disease Research and Treatment

11. The Three Primary Variations on Informed Consent • The physician based standard • Disclose what a reasonable, minimally competent physician would have disclosed • The “reasonable patient” based standard • Disclose what a reasonable patient under the circumstances would have considered “material” • The “particular patient” standard • Disclose what the particular patient would have considered “material”

12. Informed Consent • As a patient, how much information would you want?

13. The Professional Standard—Culbertson v. Mernitz-Page 222 • What are the facts of this case? • Recalling your Torts course, as a generally matter what would plaintiff have to prove to prevail against Dr. Mernitz in a standard malpractice case? • Duty • Breach • Injury • Damages • Did plaintiff bring a standard malpractice case? If not, what difference does it make? • What does the court hold?

14. Informed Consent • To whom does the doctrine apply? • How does it differ from the common-law tort of battery?

15. Rizzo v. Schiller—Page 228 • What are the facts of this case? • What does the court hold? • Why didn’t the form signed by the patient constitute an effective consent? • Would the Ohio statute quoted on page 232, if applicable, have affected the outcome of this case?

16. A consent in writing to any medical or surgical procedure or course of procedures in patient care which meets the requirements of this section shall create a presumption that informed consent was given. A consent in writing meets the requirements of this section if it: 1. Sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, or disfiguring scars associated with such procedure or procedures, with the probability of each such risk if reasonably determinable. 2. Acknowledges that the disclosure of that information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner. 3. Is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent, is signed by a person who has legal authority to consent on behalf of that patient in those circumstances. Iowa Code 147.137

17. Canterbury v. Spence—Page 235 • What are the facts of this case? • How does the court’s holding differ from that in Culbertson? • Why does the court reject the traditional view? • What is the material risk standard adopted by the court? • Is it objective or subjective? • What exceptions are there to it?

18. Truman v. Thomas—Page 248 • What are the facts of this case? • What does the court hold? • Why do you think this case is so controversial? • Shouldn’t this patient have known the risks such that one of the Canterbury exceptions applied?

19. Johnson v. Korkmoor—Page 251 • What are the facts of this case? • In what respect is the nature of what the court concludes should have been disclosed different from the prior cases? • Should you be required as a new lawyer to tell your clients about your relative lack of experience? • What other kinds of risks should doctors be required to disclose about themselves? • HIV • Alcohol or drugs

20. Moore v. Regents of the University of California—Page 263 • What are the facts of this case? • What does the court hold? • Under what circumstances, if any, could the other participants be held liable? • Do you see any special causation problems associated with the court’s approach? • Having read this case, what are the elements of a breach of fiduciary case?

21. Moore Liability Problem, Pg. 275 • $15,000 fee • Referrals and marital relationships • Group practice • Capitated Payments • Risk Pools

22. Shea v. Esensten—Page 270 • What are the facts of this case? • What possible claims could arise from these facts? • What does the court hold? • What if anything should the HMO have been required to disclose? • ERISA

23. Human Experimentation • Can a parent consent to non-therapeutic research using his/her • Infant • Minor • Adult incompetent child.