Introduction

By law, every person is considered an adult and in the right mind frame to make decisions on what happens to their bodies have a right to do so. This means that before a doctor caries out any procedure on a patient under conditions that are not emergency has to obtain and informed consent from their patient. This holds even if the choice of the patient is against the advice of the doctor. The concept of informed consent is best described by the Lugenbuhl and Downing case.(Gatter, 2000).

Review of the case Lugenbuhl v. Downing

The plaintiff has a history of hernia problems and consulted Doctor Downing a general surgeon to repair an intercostal hernia. The patient explained that two surgeries performed before had failed and the third time was successful because the doctor used a surgical mesh. The doctor agreed to use surgical mesh and even indicated as much in the consent form but did not do so during the surgery. In the subsequent years, the doctor performed two additional surgeries, to remove a diseased gall bladder and then to reclose the incision site that had opened when the plaintiff coughed.

The plaintiff developed a large hernia in his abdominal region, and had a surgery to repair it done using surgical mesh. The plaintiff filed the case against Dr. downing on claims of lack of informed consent and medical malpractice. He claimed that the failure of the doctor to use surgical mesh in the first surgery caused the large hernia and necessitated further surgery.

Elements of legal citation

Plaintiff refers to the person who filed the case who in this case is the patient – Mr. Lugenbuhl. Defendant refers to the person against whom the case is filed who in this case is the doctor- Dr. John Downing. The case was filed on October 10 in 1997 in the Supreme Court of Louisiana.By law, the doctor has a responsibility of availing possible options for treatment and the risks associated with each to enable the patient to make an informed decision. Failure to do so or negligence on the part of the doctor makes them liable.

Informed consent

This is the permission the patient gives the doctor to carry out a procedure after being made aware of all the alternative options of treatment, possible risks and additional decisions that can only be made after the surgery begins. People have a right to decide what happens to their bodies, as this means they choose to endure the repercussions of the procedure. This doctrine is important in that it protects the patients right to decide what happens to their being and ensures that doctors fully explains to the patient what the procedure entails.

The doctrine exists to protect patients from undergoing procedures they would deny if they had all relevant facts. In its absence, the doctors would have the power to do as they please even if the patient suffers. This doctrine ensures that only the patient has the power to decide the risks they are willing to undertake, and that their choices are respected even if it goes against the advice of the doctor. (Noah, 2002).

For informed consent to hold under law, the plaintiff has to have proof that the breach of the duty to inform the patient of all the relevant facts was cause of the patient experiencing the claimed damages or that the information would have prevented the damages. Secondly, the plaintiff has to have proof that a reasonable patient in the same position with all the facts would not have given consent for the procedure. If the information withheld would not cause another patient to make a different choice it will not hold.

Basis for negligence to be battery

In some cases, negligence can be considered as battery, unconsented touching or the breach of the doctor’s duty to inform the patient of all material information. This may happen if the doctor caries out an additional procedure for which they did not obtain consent for or inform the patient in the absence of an emergency and it leads to damages. The problem of lack of informed consent can be view as more of negligence that intentional wrongdoing since it is a professional responsibility of the doctor to inform the patient of all the material facts of any procedure they partake.

Elements of informed consent

In order for any consent to be valid, it has to be voluntary and free of pressure, the person has to have all the relevant information and be in a capacity to give it. For consent to be informed, the patient has to have a clear knowledge on the nature of the procedure. Moreover, all the alternatives to the proposed procedure that are reasonable have to explain. In addition, all risks, benefits and uncertainties related to each of the procedures have receive explanation clearly.(Nichol, Huszti, Rokosh, Dumbrell, McGowan & Becker, 2004).

The patient’s capacity to give consent has to be determined. This is by ensuring that they are in a position to understand information given to them and use it to make an informed choice. Finally, the patient has to make a decision based on all the facts provided. Patients who lack capacity to give consent have to have a legal representative give the consent in their place.

Conclusion

Informed consent gives the patient an ability to participate smartly in the treatment process. Doctors have a legal responsibility to ensure their patients receive all the relevant information concerning the procedures proposed. This includes risks, uncertainties and alternative procedures to the one proposed. Lack of doctors to avail this information makes them liable to any damages that result from the procedure on basis of battery or negligence on their part.

References

Gatter, R. (2000). Informed consent law and the forgotten duty of physician inquiry.Loyola University Chicago Law Journal, 31, 557.

Nichol, G., Huszti, E., Rokosh, J., Dumbrell, A., McGowan, J., & Becker, L. (2004). Impact of informed consent requirements on cardiac arrest research in the United States: exception from consent or from research?Resuscitation ,62(1), 3-23

Noah, L. (2002). Informed consent and elusive dichotomy between standard and experimental therapy.Am. JL & Med., 28, 361.