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Thursday, March 25, 2004In the mid 1990s, the Montana legislature put an informed consent law for abortion on the books, but it was struck down by the Montana Supreme Court. The high court said the law was unconstitutional because it violated a privacy provision in the state constitution. Can that be true, or are they confusing informed consent with consent for minors? UPDATE: An obstetrician/gynecologist from Montana clarifies: I'm an OB/GYN who lives in Billings, and the law in question has to do with a very detailed informed consent law that was struck down in 1999. Montana doctors are held to the same standards as doctors everywhere. There is no law requiring informed consent for medical procedures in virtually ANY state, except for special laws dealing with abortion; and reproductive care of minors. Almost all medical/legal guidelines are promulgated by standard of care or "case law", not laws passed by the legislature. So you can't find informed consent "laws" by looking them up chapter and verse- but they are definitely there. The law also included a 24 hour waiting period. The consent law included a great deal of detail not typically offered prior to abortion. The following is from the National Abortion Rights League website (don't you love the sneer quotes around "unborn child" and "father"): ."...The unenforceable law also provides that at least 24 hours prior to an abortion the woman must receive a state-mandated lecture by the physician or physician’s agent, which may be by tape recording, that includes: (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the “father” is liable for child support even when he has offered to pay for the abortion; and (3) that she has a right to review state-prepared materials. The state-prepared materials must: (1) describe with pictures or drawings the anatomical and physiological characteristics of the “unborn child” at two-week gestational increments, including the possibility of survival; (2) describe the methods of abortion and the risks commonly associated with each, the “possible detrimental psychological effects” of abortion and adoption, and the medical risks associated with carrying a pregnancy to term; (3) state that the law allows adoptive parents to pay the costs of prenatal care, childbirth, and neonatal care;....." Mont. Code Ann. §§ 50-20-104, -106, -301 to -304 (WESTLAW through 2003 Reg. Sess.). The point of this law was to go far above and beyond the usual medical counseling for a procedure, as you can see. It was struck down in 1999. Note, however, that if the woman in question was made to wait the 24 hours, she may have changed her mind and not had the regrets she clearly has now. I'm anti-abortion, but in general the non-abortion care provided by Planned Parenthood in Billings is good. UPDATE II: An attorney from out West says that there are laws in some states requiring informed consent: I am a med mal & professional discipline lawyer. Drs are my clients. And, as it happens, I have a connection to Montana -- my Mom was raised on a cattle ranch in Fergus County. Your MT OB-Gyn is mistaken on one peripheral point. Washington, my state, DOES have a statute defining informed consent. It has another defining medical negligence. To wit (I have waited 25 years for the opportunity to use that phrase): RCW 7.70.050 Failure to secure informed consent -- Necessary elements of proof -- Emergency situations. (1) The following shall be necessary elements of proof that injury resulted from health care in a civil negligence case or arbitration involving the issue of the alleged breach of the duty to secure an informed consent by a patient or his representatives against a health care provider: (a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment; (b) That the patient consented to the treatment without being aware of or fully informed of such material fact or facts; (c) That a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts; (d) That the treatment in question proximately caused injury to the patient. (2) Under the provisions of this section a fact is defined as or considered to be a material fact, if a reasonably prudent person in the position of the patient or his representative would attach significance to it deciding whether or not to submit to the proposed treatment. (3) Material facts under the provisions of this section which must be established by expert testimony shall be either: (a) The nature and character of the treatment proposed and administered; (b) The anticipated results of the treatment proposed and administered; (c) The recognized possible alternative forms of treatment; or (d) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment administered and in the recognized possible alternative forms of treatment, including nontreatment. (4) If a recognized health care emergency exists and the patient is not legally competent to give an informed consent and/or a person legally authorized to consent on behalf of the patient is not readily available, his consent to required treatment will be implied. RCW 7.70.040 Necessary elements of proof that injury resulted from failure to follow accepted standard of care. The following shall be necessary elements of proof that injury resulted from the failure of the health care provider to follow the accepted standard of care: (1) The health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he belongs, in the state of Washington, acting in the same or similar circumstances; (2) Such failure was a proximate cause of the injury complained of. posted by Sydney on 3/25/2004 10:09:00 AM 0 comments 0 Comments: |
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