NJ Pediatric Lack of Informed Consent Attorney
When a person must undergo surgery requiring anesthesia or obtain other health care services, such as blood transfusions, cancer treatments, certain medical tests, or vaccinations, healthcare providers must obtain the informed consent of the patient before administering treatment. This is typically written and applies to the vast majority of cases involving adults, when the patient is able to consent. It is important to note that there are specific circumstances under which written consent is not required, namely if a patient is unable to consent during an emergency or the consent is implied because the patient seeks treatment. In addition, there are particular nuances and requirements in pediatric care, as the patient is often presumably ill-equipped to understand and appropriately make medical decisions for themselves. Generally, when children cannot legally consent because they are minors, the parent or guardian of the child consents as representative of the patient. This is especially true if the minor children are too young to fully comprehend their condition and the proposed medical treatment. However, in New Jersey, older minors can consent to their health care treatment without their parents under certain circumstances.
When dealing with a minor’s medical condition, it is critical to understand the rights of the child and his or her parents, as well as the responsibilities of the medical professional attending to their care. This becomes even more significant when a pediatric patient suffers some form of harm as a result of their doctor’s failure to obtain informed consent, whether from the parent or guardian, or the young person themselves. Our team of malpractice attorneys is well-versed in New Jersey’s informed consent laws and their particular applicability to the medical care and treatment of children. If you have questions about a case involving informed consent or lack thereof, please contact us at (866)-708-8617 for answers and assistance. We provide free consultations around the clock to best serve your needs.
What does Informed Consent Mean when Providing Medical Care for Children?
Informed consent means that the provider has explained the medical services to be performed, including the procedures, diagnosis, risks, benefits, alternatives, and probable outcomes. It also includes assessing the patient’s ability to voluntarily make a medical decision. In that way, the patient can make an informed choice as to whether they wish to proceed with the proposed medical intervention.
Who gives consent for medical services for minors?
Most minors, particularly those under the age of 13, need parental consent to access health care, except in certain contexts. For instance, mandatory reporting laws restrict minor consent and privacy protection, such as reporting child abuse, transmissible diseases, violent assaults, domestic violence, and suicidal patients. Moreover, in New Jersey, minors who are married, pregnant, or parents may consent to their own healthcare. Minors may also consent for certain preventative care, like contraception, pregnancy, STD treatment, drug and alcohol treatment, mental health services, and sexual assault treatment. In general, however, parents or guardians provide informed consent for medical care to those under the age of 18.
Given that children are less likely capable of understanding the entirety of the circumstances and the consequences of often complex medical decisions, the limited autonomy over their healthcare decisions makes sense. Infants, toddlers, and young children rely on their parents or guardians to make decisions in their best interests, underscoring the need for physicians and other medical professionals to equip those making these choices with all of the necessary information.
Can minors provide informed consent?
To encourage minors and young adults to freely access health care without fear of sacrificing privacy, New Jersey’s minor consent laws allow adolescent minors to consent to certain health care without their parents’ involvement. The New Jersey minor consent to treatment law allows a minor 13 years and older to consent to health care services or forensic examination for sexual assault if the minor believes they have a sexually transmitted disease, AIDs or HIV, or the health care provider believes the minor is a victim of sexual assault (NJ Rev Stat § 9:17A-4). The consent is as valid as if the minor were an adult and parents may not be notified of sexual assault if it is not in the minor’s best interest. A minor may likewise consent to treatment by a licensed doctor or state licensed facility for the treatment of drug and alcohol abuse. The same applies to mental and behavioral health services. So, a minor can receive healthcare services for sexual assault, drug addiction, and mental health services at hospitals, clinics, medical offices, or other licensed facilities without the consent of anyone but the minor.
If a minor consents to treatment, is their information confidential?
As with all diagnostic and treatment for patients, consent is meaningless without privacy protections. Protecting the confidentiality of adolescent health records and services not only protects individuals, but also the public against the added burdens of increased health care costs of an untreated population. Adolescents who feel their privacy is safeguarded are more likely to undergo STD and pregnancy testing and obtain contraception. Thus, minor consent policies that pertain to preventative and other reproductive health care, as well as treatment for sexually transmitted diseases have been adapted by numerous health care organizations to comply with New Jersey state law and federal law.
What is an example of informed consent for a child?
Let’s take an example to more thoroughly illustrate the issue of informed consent in pediatrics. Perhaps a child is born with a congenital heart defect, requiring major corrective surgery. The child’s doctor must make an accurate diagnosis, which is then fully explained to the child’s parent(s), in addition to the proposed treatment plan and any available alternatives, the risks of the procedure and treatment approach, the benefits and expected course of recovery, prior to proceeding with the child’s medical care. In the absence of this crucial information, parents and guardians are deprived of the ability to provide informed consent.
Lack of Informed Consent in Pediatrics
For young patients, infants, and small children who cannot understand the medical diagnosis and treatment necessary for their health or the consequences, informed consent must be obtained from parents. As spokespersons and decision-makers, parents or guardians must be informed enough to make important health decisions for their children. They must be able to weigh the risks against the probable outcomes of any given medical procedure performed on their child to choose the best course of action. Furthermore, they must be assured the professional performing the procedure is qualified and understand the length of recovery time, as well as the medications to be administered, including any side effects of those medications.
So, what happens when a physician fails to fully explain a procedure, the alternatives, and outcomes, or does not assess whether the parent or guardian understands the risks of such a procedure due to language or other barriers? In other words, what are the consequences when a healthcare professional fails to obtain informed consent? If treatment that ultimately harms a child is given without informed consent, their parents may have grounds for a pediatric malpractice claim.
What if my Child was Injured by Failure to Obtain Informed Consent in New Jersey?
If your child suffered injury from a medical procedure or treatment, such as surgery, radiation, or biopsy test, without your informed consent, you may wish to discuss your rights with an experienced pediatric malpractice attorney. Had you known the risks, you might have been able to avoid the outcome, which is why it is important to determine whether medical negligence occurred in your child’s case. Discuss your family’s situation and potential eligibility for damages for your child’s injuries by calling us at (866)-708-8617. Our attorneys have extensive knowledge in this area and we are here to provide you with a free case review, answers relevant to the unique aspects of your child’s case, and zealous advocacy.
- Adolescent & Young Adult Health Care in New Jersey: A Guide to Understanding Consent & Confidentiality Laws, Adolescent & Young Adult Health National Resource Center
- Informed Consent in Decision-Making in Pediatric Practice, American Academy of Pediatrics