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Informed Consent Lawsuit

 

Danny Duke, as survivor and personal representative of the estate of

Darcy Duke, deceased, v. Carlos Rodriguez, M.D. and University Hospital

 

Points of law to consider about informed consent:

 

• A competent individual has the categorical authority to refuse even lifesaving treatment.
• A physician who treats a patient despite the patient’s refusal is civilly and criminally liable for assault and battery.
• A person is presumed to be competent unless the evidence shows otherwise.

 

Mrs. Duke died of respiratory failure on July 24, 2007.  Her breathing tube became dislodged that day and she and Mr. Duke refused, for more than four hours, to allow the medical personnel to reinsert it.  After she finally consented to the re-intubation, an emergency room physician performed the procedure.  Several minutes later however, Mrs. Duke coded and she was pronounced dead at 6:30 a.m.

The plaintiff argues that Dr. Rodriquez should have gone to the hospital and re-intubated Mrs. Duke despite her wishes.

During the trial, Dr. Rodriguez established that he would not have performed the re-intubation without the patient’s consent, even if he had gone to the hospital that morning.  Nurse McKay, one of the ICU nurses who cared for Mrs. Duke throughout the morning, testified that patients’ breathing tubes frequently become dislodged and the emergency room physician would have been called to perform the re-intubation the moment Mrs. Duke signed the consent form.

Dr. Bone was the medical expert for the Dukes.  He stated that Dr. Rodriquez’s conduct fell below the standard of care because: (1) Mrs. Duke was not competent to refuse intubation, (2) the situation was an emergency and Mrs. Duke’s consent was therefore implied, (3) Dr. Rodriquez had a duty to re-intubate Mrs. Duke, (4) Dr. Rodriguez should have gone to Mrs. Duke’s bedside to assess her competency instead of relying on the nurses to make that determination; and (5) a timely intubation would have saved Mrs. Duke’s life.  According to Dr. Bone, “Mrs. Duke was in no position to judge appropriate therapy for herself and to make a rational decision.”

Nurse McKay, three other ICU nurses, and Dr. Franks, the emergency room physician who eventually re-intubated Mrs. Duke, testified that the entire period of Mrs. Duke’s extubation, she was awake, alert, oriented, and asking appropriate questions.  In nurse McKay’s chart notes at 4:00 a.m. it was written that Mrs. Duke “was informed of and understood the risk of death if the tube is not timely reinserted.”

Based on what you have learned about informed consent, how would you rule in this case? 

Write a one page response explaining the case and how you feel the judge would rule.