Physicians are often faced with patients who are in critical condition and need immediate medical attention to save their lives.  When they are faced with these circumstances, stopping to get informed consent from the patient or their family members could cost the patient their life.  The Supreme Judicial Court of Massachusetts has recently considered whether the presence of a life threatening medical condition alone vitiates the need to obtain a patient’s informed consent to treatment.              

            This recent ruling revolves around an unusual case in which the plaintiff claims that an emergency room physician failed to obtain the informed consent of a critically ill patient to urgently needed life saving medical treatment.   

            This patient suffered a severe asthma attack on March 18, 1990 which she unsuccessfully attempted to treat with a prescription inhaler.  At her sister’s suggestion, the patient agreed to go the local hospital for further treatment.   

            Upon arriving at the hospital, the patient was initially treated with a nebulizer, a mask placed over her mouth which delivered oxygen and medication.  At one point, she removed the mask and said it was giving her a headache.  Since the patient’s blood gas tests from earlier that morning indicated that she was severely oxygen deprived, the emergency room physician instructed her to keep her mask on and told her that she needed to intubated.  The patient agreed to continue wearing the mask, but did not want to agree to the intubation. 

            Despite the nebulizer treatment, the patient’s medical condition did not improve much.  As a result of her inability to get enough oxygen, the patient appeared confused and combative.  The physician believed that this patient needed to be urgently intubated in order to save her life.  Due to the emergent nature of the intubation, the physician did not have the time to fully discuss his treatment plan with the patient.  The physician’s treatment plan was successful in treating the asthma attack and the patient was later released from the hospital.  

            The patient’s family felt that the patient was traumatized by the emergent intubation.  In particular, they claimed that she had nightmares, cried constantly, and could not return to work for several months.  The family also claimed that the patient became suspicious of physicians and did not want to go to hospitals for medical treatment. 

            In July 1992, the patient suffered another severe asthma attack while at home with her brother and her fiance.  She did not want to go to the hospital.  After she became unconscious, her brother called an ambulance.  Despite efforts to resuscitate her, the patient died two days later in the hospital. 

            The patient’s family brought a wrongful death claim against the physician who had to emergently intubate the patient in 1990.  They claimed that the physician intubated the patient without her consent which caused her to fear medical treatment.  At trial, the family argued that despite the fact that the patient had been severely oxygen deprived for an extended period of time, she was fully capable of giving her consent to the intubation.  The family also claimed that if the patient was not capable of consenting they were readily available for consultation on this matter.  The physician argued that since he was faced with a life-threatening emergency, the patient’s consent to the intubation was not necessary.   

            At trial, the judge instructed the jury that “under Massachusetts law a patient has the right to refuse medical treatment except in an emergency, life-threatening situation.”  Therefore, since Catherine never consented to the intubation, the jury had to determine whether or not a life-threatening situation was present in this case which would obviate the need to get her consent.  The jury agreed that the physician was faced with a life-threatening situation and returned a verdict in his favor.   

            On appeal, the patient’s family argued that the judge erroneously instructed the jury that a patient’s right to refuse medical treatment does not apply in an emergency medical situation.  The Supreme Judicial Court held that the emergency-treatment exception to obtaining informed consent “cannot entirely subsume a patient’s fundamental right to refuse medical treatment.”  In particular, the Court explained that the privilege of providing medical treatment without consent cannot override the refusal of treatment by a patient who is capable of giving consent.  Since the jury never considered whether the patient’s oxygen deprivation rendered her incapable of giving her informed consent to the intubation, the Appeals Court remanded the case to the superior court to be retried.    

            In light of the Supreme Judicial Court’s decision, an emergency life-threatening medical situation does not create an automatic privilege of providing medical treatment without a patient’s consent.  A patient who is fully cognizant and capable of providing their informed consent should be advised of the risks of the emergency treatment.  However, a physician should never delay providing life-sustaining treatment just because they do not have the time to get the patient’s informed consent. 

            A physician who is faced with a patient who is in need of immediate life-saving treatment should fully document in the patient’s chart exactly why the treatment was urgently needed, that there was no time to fully discuss the risks of treatment, and the signs and symptoms which indicate that the patient was not competent to provide informed consent to treatment.     


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    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration

    Informed Consent in Patients with Life-Threatening Conditions

    by Attorney Frank E. Reardon

    July 1999