Informed Consent for Medical Procedures
Careful! New Rule Affects the Disposal of Consumer Credit Information
Junk Fax Protection Act
Destruction of Evidence
Naming a Guardian for Your Children
Construction Zone
Illinois Legal Update
Insights and Developments in the Law
Winter 2005/2006
Informed Consent for Medical Procedures
Illinois law requires that physicians acting in non-emergency situations first must obtain a patient’s "informed consent" prior to performing surgical or operative procedures. The doctrine of informed consent requires that a physician disclose to each patient the material facts, risks, complications, and alternatives to surgery that a reasonable, prudent person would consider significant in deciding whether to undergo the surgery. Where incisions, excisions, or sutures are made and surgical instruments are used, the procedure qualifies as one for which the physician must obtain the patient’s informed consent.
The doctrine of informed consent arises from the notion that a patient and a physician are entering into a contract. For the contract to be valid, both parties must understand and agree upon the nature of the procedure and both the expected and the possible unexpected results. The doctor need not disclose all information that he or she knows, but must generally advise the patient of the facts, risks, complications, and alternatives to surgery.
Where an operative procedure is conducted without the patient’s informed consent, the patient may have a legal claim for both medical negligence and "battery," which is generally defined as an unwanted touching. Unlike most medical malpractice cases, in battery claims the patient need not prove that the doctor was negligent, but rather only that the doctor conducted a procedure without the patient’s informed consent. The amount of damages suffered by the patient is determined by the jury and must be supported by some evidence produced by the patient.
Illinois courts have decided several cases that explore the limits of informed consent. In one case, the court held that a surgeon had a duty to disclose his HIV-positive status to a patient before he operated on her. However, the patient was unable to completely pursue her claim because she did not become infected with the HIV virus and, therefore, did not have an injury arising from the surgeon’s conduct.
In another case, an Illinois court ruled that a battery had been committed when a male nurse viewed and touched the naked body of a female patient, violating her religious beliefs. Because the medical personnel were aware of her beliefs, the court found that the nurse and the hospital could be liable for knowingly interfering with a person’s right to refuse or accept medical care.
Doctors need not provide the details of their education and experience to all of their surgical patients. However, they must give accurate and truthful answers to those patients who inquire. They need not guarantee the reliability of devices that they implant, but they must share information about the limits of FDA approval and any known risks. The entitlement to this information is something that patients should value and take seriously. When signing an informed consent form, patients should take time to read the form and, if necessary, ask for more information.
Careful! New Rule Affects the Disposal of Consumer Credit Information
In the Fair and Accurate Credit Transactions Act of 2003 (FACTA), Congress required the adoption of rules for the proper disposal of consumer report information and records. The legislation was prompted by the growing risk of consumer fraud and related problems, including identity theft, that arise from the improper disposal of consumer information for which there is no longer a business need or purpose. FACTA and the rule stemming from it are meant to make it tougher for dumpster divers and miners of computer data to profit from sloppy disposal methods.
The Federal Trade Commission’s Disposal Rule went into effect on June 1, 2005, but affected businesses were given until December 1, 2005 to come into compliance. Failure to comply could trigger a range of civil enforcement actions by the Government or affected customers.
While there is room for interpretation of the Disposal Rule’s meaning, and how it should be applied as circumstances change, the Rule’s essential standard is all in one sentence:
Any person who maintains or otherwise possesses consumer information for a business purpose must properly dispose of such information by taking reasonable measures to protect against unauthorized access to or use of the information in connection with its disposal.
What is Covered?
Consumer information covered by the Rule means any record about an individual, in any form, that is a consumer report or is derived from a consumer report. The definition includes a compilation of such records. If the information does not in some fashion identify individuals, however, such as information in aggregate for, the Disposal Rule does not apply. The obvious ways in which individuals may be identified are names, Social Security numbers, driver’s license numbers, telephone numbers, physical addresses, and we-mail addresses. But even pieces of information that, by themselves, do not identify someone can, in combination, be regarded as identifying information.
Who is Covered?
The Rule was intentionally written broadly to apply essentially to any "person" maintaining or possessing consumer information other than an individual who has obtained his own consumer report. Some entities that commonly obtain consumer credit information include consumer reporting agencies, lenders, insurers, employers, landlords, government agencies, mortgage brokers, financial institutions, and automobile dealers. This is far from an exhaustive list. If an entity can obtain a consumer report for one or more of the business purposes mentioned in the Fair Credit Reporting Act, it is safe to assume that the entity and the information it obtained are subject to the Disposal Rule. Disposal and records management companies also fall under the Rule.
Reasonable Measures
The Rule uses the flexible term "reasonable measures" to describe the duty regarding disposal because perfect destruction of consumer information in every instance is unattainable. Variables that may be taken into account include the sensitivity of the information, the nature and size of the entity’s operations, the costs and benefits of different disposal methods, and ongoing changes in technologies. It is also noteworthy that the concept of "disposal" also covers the sale, donation, or transfer of any medium on which consumer information is stored.
The Rule provides a non-exhaustive set of examples of "reasonable measures." To prevent the reading or reconstruction of records in paper form, policies should be adopted, and their implementation monitored, for the burning, pulverizing, or shredding of such papers. The same approach is advisable for policies for the destruction or erasure of electronic media. Since simply deleting information stored on a computer is usually insufficient to safeguard the information, use of some low-tech methods of destruction on some high-tech methods of storing information may be in order. For example, the Federal Trade Commission has suggested, at least for small businesses, the nearly cost-free method of disposing of electronic media by smashing the material with a hammer.
A covered person’s due diligence also should extend outside the office when disposal of information is contracted out to a provider of such a service. One of the "reasonable measures" mentioned in the Rule refers to taking steps to determining the competency and integrity of the disposal company, such as reviewing an independent audit of the company, getting references, requiring that the company be certified by a trade association, or reviewing and evaluating the disposal company’s policies and procedures on information security.
There may be some finality to the formerly unsettled picture on federal regulation of junk fax transmissions. Since the first federal legislation on the subject, in 1991, there has been an "established business relationship" exception allowing the sending of commercial advertising by fax under certain conditions. In 2003, the Federal Communications Commission issued a regulation that would have effectively removed the exception, requiring express written permission from the recipient for sending any commercial ads by fax. Opposition from business groups prompted the FCC to put off enforcement of that rule three times.
Before the restrictive FCC regulation could be enforced, new legislation has reinstated the established business relationship exemption. It is still illegal to send unsolicited fax advertisements to anyone who has requested that they not be sent. However, unsolicited faxes can be sent if the sender has an established business relationship with the recipient and the fax itself has a conspicuous notice on its first page informing the recipient that it can request not to be sent more such faxes. To combat the sale of fax lists to mass marketers, the law requires businesses to obtain fax numbers either directly from the recipient or from a published source, such as a directory, an advertisement, or a website.
A recent Illinois case reminds us of the importance of preserving evidence of accidents. The case arose when a newspaper carrier fell into a hole in a homeowner’s sidewalk, breaking his elbow. After the injury, the homeowner asked her insurer whether she should fix the hole. The insurer said that it was okay to do so, and the homeowner repaired the sidewalk.
Unfortunately, no one took a picture of the sidewalk before the repair, and the injured carrier was unable to show how the hole looked when he fell. He sued the insurance company, claiming that it had a duty to preserve evidence regarding his injuries and, in addition, that it was negligent in approving the repairs to the sidewalk.
According to the Illinois Supreme Court, the insurer had no legal obligation to preserve evidence concerning the slip and fall. Although the insurer had a contract with the homeowner, the newspaper carrier was not a party to that agreement. While the court recognized that the insurer might have an obligation to safeguard evidence under its control, the insurer did not control the sidewalk. Because the insurer owed the carrier no duty to preserve the evidence, it did no wrong in approving the repairs.
Naming a Guardian for Your Children
In the event of death, parents should name legal and physical guardians of their minor children. However, the creation of a guardianship by a parent is not always controlling. Illinois law provides that all custody cases must be decided in the best interest of the child. Anything that can have an effect on the child’s physical, intellectual, moral, and spiritual well-being is considered by the courts in choosing a custodian or guardian.
A sole surviving parent may name a guardian to take custody of a child upon the parent’s death. Courts initially will presume that the parent’s choice of guardian is the best choice. However, other relatives or adults significantly attached to the child can challenge the guardianship and seek custody of the child. In that event, the court will decide who should have custody of the child. Anyone who challenges a deceased parent’s choice of guardian has a heavy burden to prove that the court should reject the parent’s choice.
Where parents are separated or divorced and the custodial parent dies, the surviving parent has custodial rights superior to those of any guardian named by the deceased parent. If the surviving natural parent is incompetent, unfit, missing, or unwilling to care for the child, the court can award custody to a guardian named by the deceased parent. Additionally, if a parent has provided essential parenting for the child, he or she may have standing to challenge a competent, interested natural parent’s rights. However, the strong rights of the natural parent are very difficult to defeat.
Whether married, separated, or divorced, parents should strive to identify a mutually acceptable guardian to take custody of their minor children in the event of their death. Where separated or divorced parents cannot agree, each parent must realize that the courts will favor the surviving parent but also will consider the claim of an involved third-party, especially one identified as the preferred custodian by the deceased parent.
Hundreds of motorists die in construction and maintenance zones annually. Most crashes are rear-end collisions. A few tips can make construction zones safer for everyone:
- Follow the posted speed limit.
- Focus on the road, not the construction.
- Keep three seconds of distance between you and the vehicle in front of you.
- Stay calm and pay attention.
- Give yourself extra time to arrive at your destination.