Monday, July 13, 2020

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Article Index

II. The Default Rules: Informed Consent, Common Law Battery, and EMTALA

      Physicians operate in accordance with a code of medical ethics that emphasizes the interests of patients and the obligations of physicians. The basic principles that form the core of this code are nonmaleficence, respect for persons, beneficence, and justice. The concept of nonmaleficence, derived from the Hippocratic Oath, reminds physicians to do no harm. Respect for persons is an understanding that patients must be empowered to make informed and autonomous healthcare decisions. Beneficence is the notion that healthcare providers' primary obligation is to confer benefits while balancing the risks attendant to the provision of healthcare. Justice refers to the fair distribution of scarce resources and respect for individual rights. These obligations form the normative backdrop for a physicians' duty to provide care, and they undergird the prevailing legal doctrines that govern the accommodation of patients' racial preferences in the hospital setting: informed consent, battery, and EMTALA.

      Informed consent, which emerged from the law of battery, is the doctrinal antecedent of the right to refuse unwanted medical care. Indeed, the right of informed consent assumes a corollary right of informed refusal. Thus, a competent patient has a common law and constitutionally protected liberty interest in refusing unwanted medical care. EMTALA, the federal anti-patient-dumping statute, requires hospitals to provide a medical screening examination to any individual who arrives in a hospital emergency department requesting medical treatment.

      This Part illustrates how these laws and legal doctrines operate as guidelines that inform the way physicians and hospitals currently respond to a patient's demand for or refusal of treatment by a physician of a particular race. It begins by examining the advent of the doctrine of informed consent, its roots in the law of battery, and the subsequent formulation of the right to refuse unwanted care. It then sets forth the aims and concerns that prompted the U.S. Congress to enact EMTALA and the ways in which this law shapes decisionmaking in the hospital context with respect to accommodating patients' racial preferences.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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