If the patient lacks capacity

February 2, 2007

Malpractice Consult

Expand your initial history and physical to assess whether the patient has the capacity to make medical decisions on his own behalf. Legally speaking, "capacity" means the ability to understand a physician's discussion of the risks and benefits of-and alternatives to-recommended treatments. If an incapacitated patient can understand and make medical decisions for himself, you'll breach patient confidentiality and HIPAA regulations if you involve family members in treatment decisions without first getting the patient's permission to do so.

Order a psychiatric evaluation if you can't ascertain capacity on your own. A patient who's capable of handling his financial affairs might not be able to make medical decisions. On the other hand, someone who insists he was kidnapped by aliens and spent his formative years on Pluto might easily grasp the specifics of his diagnosis and treatment. A psychiatric consultation can clarify the situation and will serve as your best legal backup.

When an elderly patient hasn't designated a representative but comes to your office with a relative, ask her if she'd like the relative to come into the exam room with her. Chances are excellent that she'll say Yes. Before the visit ends, ask the patient and her relative if they have any questions. Tell the relative to let you know if a new medical problem develops between visits or if the patient is having difficulty following your treatment regimen.

Get explicit and documented consent from the patient or her representative when ordering high-risk meds, aggressive treatments, or invasive surgical procedures. If something goes wrong in the treatment, the question of whether the patient understood-and would have consented had she understood-will be paramount.

Repeat instructions and information if you're not sure whether a patient has comprehended. Then ask her to repeat everything back to you. Give her written treatment and medication instructions, and write the diagnosis on the same sheet of paper-in large print, if the patient's eyesight is poor.

In any malpractice lawsuit, a major issue will be whether you and your staff could have done more for the patient. So make sure that your staff reminds incapacitated patients of upcoming appointments, and follows up on recommended referrals, treatments, and procedures.

The author, who can be contacted at lj@bestweb.net
, is a healthcare attorney in Mt. Kisco, NY, specializing in risk management issues.

This department deals with questions on common professional liability issues. We cannot, however, offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to Malpractice Consult, Medical Economics, 123 Tice Blvd., Suite 300, Woodcliff Lake, NJ 07677-7664. You may also fax your question to us at 201-690-5420 or e-mail it to memalp@advanstar.com
.