By Jeremy Wale, JD

Payment concerns are becoming more prevalent due to high deductible payment plans, uninsured patients, and lower reimbursement rates—and the importance of informed consent is undiminished no matter the situation. Help ensure your practice addresses both issues effectively.

Informed Consent
A patient’s absolute right to make informed decisions regarding his or her medical care is the foundation of informed consent. The American Medical Association states, “Physicians should sensitively and respectfully disclose all relevant medical information to patients. The quantity and specificity of this information should be tailored to meet the preferences and needs of individual patients.”

Informed consent as a legal requirement began in earnest with a New York lawsuit back in the early 1900s. Justice Cardozo of the New York Court of Appeals stated, “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body…”1 This Appeals Court decision laid the framework for our modern-day informed consent laws and rules.

Over the years, case law relating to informed consent has evolved—with some states introducing statutes governing consent requirements for healthcare providers.

Informed consent laws differ by state in the amount of information a healthcare provider is required to disclose to the patient. Some states employ a “reasonable physician” standard, meaning a healthcare provider must provide the amount of information a reasonably prudent physician would provide in the same or similar circumstances.2 Other states use a “reasonable patient” standard, requiring that a physician provide information that a reasonable patient would need to make an informed decision.3

Generally speaking, physicians do well to provide patients with enough information to make a fully informed decision about medical care. Exceptions to the informed consent requirement can be made for emergencies where the patient is unconscious and arrives at a facility needing a life-saving procedure. Be sure to check your state’s laws so you know what is required for your informed consent discussions with patients.

Refusing Treatment Due to Financial Issues
If you have self-pay patients, you may implement a pre-pay policy to ensure payment prior to rendering services. Difficulty may present when a patient requires an expensive diagnostic test or procedure that they cannot afford. Depending on the situation, consider establishing a policy addressing financial hardship and an associated payment plan for expenses that cannot be paid in one lump sum. If you choose to do this, ensure payment arrangements are in writing; this will help if you have payment issues.

A more challenging scenario occurs when a patient refuses to consent for a critical test or procedure because he or she cannot afford it. These are particularly concerning in potentially life-threatening situations. An example is a woman in labor who adamantly refuses a C-section because she cannot afford it—even after being told she, or her baby, may die if vaginal delivery is continued.

Avoiding Medical Battery, Obtaining Pre-Approval
Medical battery is a very real issue with real consequences. The most likely scenario for a medical battery claim is when the patient expressly refuses treatment and the physician performs the treatment over the patient’s objection. The C-section situation above is an excellent example.

If a patient is asked to consent to a C-section and expressly refuses, the physician’s hands are tied unless he or she can get the patient to change her mind. Certain situations require you or your practice to obtain pre-approval for a test or procedure from a third-party payer. These pre-approvals sometimes may be denied. If a third-party payer denies a pre-approval, you have two options: either appeal the denial or ask the patient to pay for the test or procedure.

If you decide to appeal the denial, each third-party payer has an appeals process you must follow. If the appeal is unsuccessful, you may try calling the payer directly, asking to speak with a physician reviewer. Once all efforts are exhausted, it’s time for a documented conversation with the patient to explain the situation.

If a patient accepts responsibility for the cost of a test or procedure, consider a written agreement. If your practice offers financing, you may wish to have a written document outlining both parties’ expectations.

Communication is key to the consent process and addressing payment concerns. If you have any questions, please contact your healthcare professional liability insurer.

1 Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129 (1914).
2 Thaw v. North Shore Univ. Hosp., 129 A.D.3d 937, 939 (2015).
3 Janusauskas v. Fichman, 264 Conn. 796, 810 (2003).

Jeremy Wale, JD, ProAssurance Risk Resource Advisor. ProAssurance Group provides healthcare malpractice insurance and is rated A+ (Superior) by A.M. Best.

Copyright © 2016 ProAssurance Corporation. This article is not intended to provide legal advice, and no attempt is made to suggest more or less appropriate medical conduct.