What is ‘consent by proxy’ for medical care?
In nonurgent cases, however, even a physical exam can be grounds for legal action claiming negligence or medical battery, according to the guidance.
“In general, battery is the unsolicited physical touching of a person. Medical battery may be alleged if treatment is provided without appropriate informed consent, when a procedure is performed that is substantially different from the one for which consent was given, when the treatment exceeds the scope of the consent, or when a physician different than the one to whom consent was granted performs the procedure,” the report states. “A physician may face a battery claim even if the treatment or procedure may have been performed without any negligence. When a plaintiff (person who files the lawsuit, usually parents on behalf of their child) is not satisfied with the results of the medical treatment or procedure but is unable to prove negligence in litigation against the physician, the plaintiff may resort to the theory of battery to seek a recovery.”
Even if no harm can be proven, damages may be awarded in these cases. More serious cases can also carry punitive damages that might not be covered by malpractice insurance. These charges may also be accompanied by discipline from licensing boards, according to the guidance.
Whereas liability for treating without consent by LAR hasn’t been a big problem for physicians so far, inadequate informed consent is a growing issue, especially when those providing consent have limited understanding of English or poor health literacy. To this end, the guidance urges that consent by proxy be well understood and that physicians not ignore the risks involved.
Care that is provided in the best interests of the child generally carries low liability risk, even without appropriate consent. However, some factors—such as language barriers or poor understanding of healthcare procedures—may increase liability risks, and pediatricians should anticipate situations that might require consent by proxy and develop office policies that manage the risks. The guidance offers several suggestions for office policies that support consent by proxy:
• Establish a policy to determine whether the practice will even treat minor patients without an LAR present. It is helpful for all physicians in a practice to adopt the same policy.
• If the practice decides not to provide nonurgent care without an LAR present, then the office should have an information sheet available to provide to the patient and the person who brought him or her. Existing and new patients should be informed about consent by proxy policies in advance.
• If a practice does decide that it will provide nonurgent care without an LAR present, a policy and procedure guide should be created to spell out the LAR’s duties to provide consent by proxy. Pediatricians should educate staff members and schedulers about the policy. Templates addressing the key questions of by proxy consent are also helpful for front-office staff to use.
1. Fanaroff JM; Committee on Medical Liability and Risk Management. Clinical report: Consent by proxy for nonurgent pediatric care. Pediatrics. 2017;139(2):e20163911.