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Notes
Most relevant to our purposes is Barnett v. Bachrach, 34 A.2d 626 (1943), which was explicitly concerned with patient’s financial obligations for a procedure performed without informed consent. See Pratt v. Davis, 224 Ill. 300, 79 N.E. 562 (1906); Delahunt v. Finton, 244 Mich. 226, 221 N.W. 168 (1928); Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962); and Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520 (1962) for other relevant decisions.
See Raphael J. Leo, “Competency and the Capacity to Make Treatment Decisions: A Primer for Primary Care Physicians,” Primary Care Companion to The Journal of Clinical Psychiatry 1 (1999): 131–141.
The court in Barnett v. Bachrach op. cit. seems to have something like this in mind when it writes, “And yet we are asked to deny the plaintiff's fee because he comes into court unable to show express authority for the excision he made. It seems to us that to adopt that view would be granting poor reward indeed for faithful professional service.”
In making these claims, we are departing from common usage. What we have called hypothetical consent is often called implied consent. The latter term, however, suggests that the patient have given some indication that they want treatment, which is often not the case when the patient is unconscious. In this section, we are siding with the plaintiff and against the court in Barnett v. Bachrach. We believe that the judges in that case mistakenly inferred from the fact that hypothetical consent could justify performing the procedure to the claim that hypothetical consent could justify charging the patient.
See “Emergency Medical Treatment & Labor Act (EMTALA),” Centers for Medicare and Medicaid Services, 26 March 2012; http://www.cms.gov/Regulations-and-Guidance/Legislation/EMTALA/index.html?redirect=/emtala (accessed 2.5.17).
The court in Barnett v. Bachrach op. cit. seems to answer in the affirmative when it writes, “The law should encourage self-reliant surgeons to whom patients may safely entrust their bodies, and not men tempted to shirk from duty for fear of law suit.”
This judgment is reflected in influential legal discussion of general duty to rescue laws where it is assumed compensation to the rescuer would come from the public rather than the rescued. See Jay Silver, “The Duty to Rescue: A Reexamination and Proposal,” William and Mary Law Review 26 (1985): 444–445 and Steven J. Heyman, “Foundations of the Duty to Rescue,” Vanderbilt Law Review 47 (1994): 750. To our knowledge, no actual or hypothetical legal proposal has suggested otherwise.
It is worth emphasizing how inadequate the data we do have is to answering this question. See Keshia M. Pollack, Dan Morhaim, and Michael A. Williams, “The Public’s Perspectives on Advance Directives: Implications for State Legislative and Regulatory Policy,” Health Policy (Amsterdam, Netherlands) 96 (2010): 57–63 for a public health study in Maryland (whose demographics are roughly similar to the broader U.S.) which suggests that just over a third (34%) of the adult population had advanced directives. See David Okai, Gareth Owen, Hugh McGuire, Swaran Singh, Rachel Churchill, and Matthew Hotopf, “Mental Capacity in Psychiatric Patients Systematic Review,” The British Journal of Psychiatry 191 (2007): 291–297 for a review of studies of psychiatric patients in the U.K. which suggests that just under a third (29%) lack capacity. See American Hospital Association, Trendwatch Chartbook 2016; http://www.aha.org/research/reports/tw/chartbook/2016/2016chartbook.pdf (accessed 2.5.17) for figures which indicate that the proportion of unreimbursed hospital costs remains steady between 5% and 6%, even as government programs reimburse an increasing proportion. The problem is that these figures are incomplete (e.g. how much revenue is received from these patients?) and the assumptions needed to fill in the gaps (e.g. that this data generalizes across the U.S.) make any result derived from them highly speculative, if not meaningless.
Thanks to an anonymous reviewer for raising this point.
Acknowledgements
We would like to thank the participants of the 2015 UAMS Intensive Healthcare Ethics Workshop and an anonymous reviewer for their helpful comments on previous drafts of this paper.
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Wells, M., Sparks, J. Capacity, Obligation, and Medical Billing. J Value Inquiry 52, 17–24 (2018). https://doi.org/10.1007/s10790-017-9599-4
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DOI: https://doi.org/10.1007/s10790-017-9599-4