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KEY POINTS

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  • Legal concerns become less dominating and intrusive, and more likely to be supplanted by ethical considerations, when critical care teams initiate and continue sensitive, consistent, and honest communication with their patients and significant others.

  • Most informed consent legal cases are framed as negligence actions, in which the alleged unintentional wrong is the physician's violation of the fiduciary or trust duty to serve the patient's best interests by informing the patient adequately as part of the testing and treatment authorization process.

  • In order to be considered legally effective, consent to medical treatment must (in the absence of a valid exception such as an unforeseeable emergency) be voluntary, informed, and made by a cognitively and emotionally capable decision maker.

  • Consent remains necessary for the treatment of decisionally incapacitated patients, but the consent must be obtained from a surrogate acting on the patient's behalf.

  • A properly informed, mentally capable patient has the right to make personal medical decisions, including a decision to refuse even life-prolonging treatment.

  • A surrogate is expected to make decisions consistent with what the patient would choose if he or she were presently able to make and express choices personally—the substituted judgment standard.

  • The ability of physicians to consult institutional guidelines concerning patient admission to, retention in, and discharge from ICUs generally leads to better, more consistent decisions that are easier to defend against later claims of impropriety.

  • The “brain death” standard provides, as either an alternative to or a replacement for the traditional heart-lungs approach, that a person is legally dead when there is irreversible cessation of all brain function.

  • Creating and maintaining accurate records of patient care is an integral part of the duty that a health care provider owes to a patient.

  • Particular areas of attention in a critical care–sensitive risk management program should include the organization and administration of ICUs, the roles and responsibilities of the different professionals having contact with patients in those units, medical records, equipment maintenance, equipment modification, equipment records, analysis of equipment malfunctions, incident reporting, and trend analysis of unexpected incidents.

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INTRODUCTION

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The making, implementation, and documentation of patients' treatment decisions in the practice of critical care medicine raise a host of potential legal implications. This chapter briefly outlines some of the more salient issues and suggests avenues for their management and further exploration.

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This chapter concentrates primarily on the chief legal ramifications of critical care medicine in the United States. It should be recognized, however, that law is increasingly influencing the delivery of critical care medicine elsewhere in the world as well. Historically, Non-American critical care physicians have tended to behave more paternalistically and unilaterally than their American counterparts, but “the apparently increasing frequency of contentious legal cases in other countries” in the critical care context has been noted.1 Today, “European intensive care physicians [as well as physicians in other parts of the globe] are well aware that the decisions made ...

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