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footnotes
1. Sharon E. Caulfield, Health Care Facility Ethics Committees: New Issues in the Age of Transparency, ABA Human Rights Magazine, Fall 2007 Vol. 34, No. 4 Available at: http://www.americanbar.org/publications/human_rights_magazine_home/irr_hr_fall07_caulfifall07.html (accessed 15 November 2011). [back to article]
2. W. Somerset Maugham, The Moon and Sixpence (New York: Grossett & Dunlap Publishers, 1919), 80.[back to article]
3. Where relevant, Washington state law will be referenced as an example in this discussion. See, generally, Revised Code of Washington, Chapter 7.70, http://apps.leg.wa.gov/rcw/default.aspx?cite=7.70. [back to article]
4. Each institution should have a policy that defines “emergency” in accordance with state law and lays out institutional documentation requirements so that providers are guided in their decision-making. Where there is no definition of ”emergency” in state law or institutional policies, institutions and courts may be guided by the definition found in the federal Emergency Medical Treatment and Active Labor Act (EMTALA, also referenced as COBRA) which provides:
(1) The term “emergency medical condition” means—
(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—
(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part; or
(B) with respect to a pregnant woman who is having contractions—
(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or
(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.
42 U.S.C 1395dd(e)(1). [back to article]5. See Revised Code of Washington § 7.70.050, http://apps.leg.wa.gov/RCW/default.aspx?cite=7.70.050. Accessed 15 November 2011. [back to article]
6. See Revised Code of Washington § 7.70.040, http://apps.leg.wa.gov/rcw/default.aspx?cite=7.70.040. Accessed 15 November 2011. [back to article]
7. “Among jurisdictions that provided totals for both trial and non-trial general civil dispositions in 2005, trials collectively accounted for about 3% of all tort, contract, and real property dispositions in general jurisdiction courts.” Lynn Langton & Thomas H. Cohen, Civil Bench and Jury Trials in State Courts, 2005, at 1 (2008), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cbjtsc05.pdf. [back to article]
8. Florence Yee, Mandatory Mediation: The Extra Dose Needed to Cure the Medical Malpractice Crisis, 7 Cardozo J. Conflict Resol. 393, 432-33 (2006). [back to article]
9. A federal health facility and its employees would be subject to the Federal Torts Claims Act (FTCA). 28 U.S.C. § 2402. Lawsuits against the United States under the FTCA are tried without a jury. Lester Jayson, Handling Federal Tort Claims: administrative and judicial remedies § 16.08 (Mathew Bender and Company 2011). [back to article]
10. The authors gratefully acknowledge the research support of the Reference Librarians at the University of Washington School of Law in drafting this section. [back to article]
11. Revised Code of Washington § 7.70.065 (2) (a), http://apps.leg.wa.gov/rcw/default.aspx?cite=7.70.065. Accessed 15 November 2011. [back to article]
12. See Revised Code of Washington § 7.70.065, http://apps.leg.wa.gov/rcw/default.aspx?cite=7.70.065. Accessed 15 November 2011.
Revised Code of Washington § 7.70.065 (1)(c). Accessed 15 November 2011. [back to article]13. See, for example, in Washington State the case In re Ingram, 102 Wn.2d 827, 689 P.2d 1363 (1984). This Washington Supreme Court decision establishes in state law the substituted judgment standard and articulates the countervailing interests of the State in weighing whether an incapacitated patient’s choice for treatment or non-treatment may be overridden. Under substituted judgment, a court directs the course of medical treatment for an incompetent by determining the treatment the incompetent would choose if he were competent to make the decision and weighing that determination against any compelling State interests, including: preservation of life, protection of the interests of innocent third parties, the prevention of suicide, and the maintenance of the ethical integrity of the medical profession.[back to article]
14. Revised Code of Washington § 7.70.065 (1)(c). Accessed 15 November 2011. [back to arrticle]
15. See Revised Code of Washington § 7.70.065(1)(a)(iii), http://apps.leg.wa.gov/rcw/default.aspx?cite=7.70.065. Accessed 15 November 2011. As of 2009, “only ten states and the District of Columbia allowed a same-sex partner to be considered ‘next of kin’” for purposes of medical decision-making. Rachel Reibman, The Patient Wanted the Doctor to Treat Her in the Closet, But the Janitor Wouldn't Open the Door: Healthcare Provider Rights of Refusal Versus LGB Rights to Reproductive and Elder Healthcare, 28 Temp. J. Sci. Tech. & Envtl. L. 65, 84 (2009). [back to article]
16. See Discussion of Case #2, below. For example, Washington State law provides for "implied consent" for emergency treatment situations: If a recognized health care emergency exists and the patient is not legally competent to give an informed consent and/or a person legally authorized to consent on behalf of the patient is not readily available, his or her consent to required treatment will be implied. Revised Code of Washington § 7.70.050(4), http://apps.leg.wa.gov/rcw/default.aspx?cite=7.70.050. Accessed 15 November 2011. However, the hospital policy may be more specific and include an institutional documentation standard. [back to article]
17. See Revised Code of Washington Chapter 70.122, http://apps.leg.wa.gov/rcw/default.aspx?cite=70.122; Chapter 11.94, http://apps.leg.wa.gov/RCW/default.aspx?cite=11.94. Accessed 15 November 2011. Non-married individuals, such as gay or lesbian couples, may also wish to complete a hospital authorization form in advance to ensure that they are permitted to visit a patient as a family member regardless of hospital policy. [back to article]
18. See Revised Code of Washington, Chapter 71.32, http://apps.leg.wa.gov/RCW/default.aspx?cite=71.32.Accessed 15 November 2011. [back to article]
19. See e.g., Mastroianni A., Mello M, Sommer S, Hardy M. Gallagher T. 2010. “The Flaws In State ‘Apology’ And ‘Disclosure’ Laws Dilute Their Intended Impact On Malpractice Suits,” Health Affairs 29(9): 1611-19. [back to article]
21. Washington's Natural Death Act currently defines the terms "terminal condition," "permanent unconscious condition" and "life-sustaining treatment," Revised Code of Washington, Chapter 70.122, http://apps.leg.wa.gov/rcw/default.aspx?cite=70.122. Accessed 15 November 2011. [back to article]
22. Washington law, for example, allows designated classes of persons to provide informed consent on behalf of an incompetent patient in the following order of priority: 1. guardian with authority to make health care decisions; 2. holder of Durable Power of Attorney with authority to make health care decisions; 3. Spouse or registered domestic partner; 4. adult children; 5. parents; and 6. adult brothers and sisters. See Revised Code of Washington § 7.70.065, http://apps.leg.wa.gov/rcw/default.aspx?cite=7.70.065. If there are two or more persons in the same class listed above (e.g., adult children), then the decision must be unanimous among all available persons in that class. [back to article]
23. See III.A.1. above (“Informed Consent”) and accompanying notes. [back to article]
24. See, for example, Revised Code of Washington § 7.70.050(4) http://apps.leg.wa.gov/rcw/default.aspx?cite=7.70.050. Accessed 15 November 2011. [back to article]
25. For example, the University of Washington’s policy provides that the definition of emergency “would clearly include treatment that is necessary to preserve life or to prevent serious disability. It also may include other types of treatment that cannot be delayed without risking unacceptable deterioration or aggravation of the patient’s condition.” Informed Consent Manual, UW Medicine, § IV.B.(revision date October 2008). [back to article]
26. In Washington State, see Revised Code of Washington, § 26.28.010. [back to article]
27 See, e.g., in Washington State, Smith v. Seilby, 72 Wn.2d 16, 431 P.2d 719 (1967). [back to article]
28. See, e.g., in Washington State, State v. Koome, 84 Wn.2d 901, 530 P.2d 260 (1975); Informed Consent Manual, UW Medicine, § X.A. (revision date October 2008). [back to article]