What does the law say in the following circumstance. This is an ethical question for schoo. A Chinese woman and her husband in the US 4 days are involved in a car accident. The woman is 30 weeks pregnant. They are involved in a car accident and brought to the ED. The woman has sustained a blunt abdominal trauma, there is evidence of a mild concussion, and fetal distress is noted. The women speak minimal english, the husband is better and is translating. An emergency C-section is recommended but declined and the couple leave the ED. Two hours later they return, the woman is now in active labor, and apprear less clear. She look fearful when questions are directed at her and defers to her husband. A C-section is presented again as the only option for mother and baby. Husband again declines. Questions:Does the fetus have legal rights. Can the husband be assumed surrogateCan the physicians override the decision of woman and husband and perform an emergent C-Section. Must the womans right to self-determination be preserved at all costs even to self and unborn child. What are the legal ramifications on to the physician if he takes matters into his own hands. What are the legal ramifications to the hospital administration if the mothe and or fetus die. What ar the legar ramifications to the hospita administation if the ED physician and staff take matters into their own hands.
Country relating to Question: United States
State (if USA): California
Looking up ethics policies and articles on line. Most deal with end of life and withholding reatment
Good morning,I'm sorry to hear of the situation. Your questions are certainly deserving of the attention of, and in the course of a direct consultation with, a Medical Malpractice Attorney---and I do suggest that you immediately consult with one---however, having handled medical malpractice issues for years, I can answer your questions in general terms. More precise answers would require the review of all medical records, consultation with an expert witness qualified on OBGYN and the depositions of half a dozen people.Does the fetus have legal rights. Per, se---not a fetus does not have legal standing to enforce any legal rights. When a decision must be made which affects the fetus, it is made by the mother, or by a court of competant jurisdiction.Can the husband be assumed surrogate If by surrogate, you mean speak for the spouse and direct medical care---No, not without either a court order of Guardianship, or a valid Durable Health Care Power of Attorney.Can the physicians override the decision of woman and husband and perform an emergent C-Section. Again, the father has no say under your fact pattern, and if the wife absolutely refuses a treatment recommended, the doctors may not provide that treatment without a specific court Order. Must the womans right to self-determination be preserved at all costs even to self and unborn child. Yes, again, a woman's right to decide to refuse medical treatment is----absent a court order to the contrary---obligated to be followed.What are the legal ramifications on to the physician if he takes matters into his own hands. The physician may be sued for civil assault a swell as Medical Malpractice. What are the legal ramifications to the hospital administration if the mothe and or fetus die. That would depend entirely on whether the fetus or the mother dies as a result of medical negligence on the part of the hospital, the staff or the physicians working for the hospital. What ar the legar ramifications to the hospita administation if the ED physician and staff take matters into their own hands. If the Emergency physician is a hospital employee, then the hospital would be liable for any negligence of the physician or the nursing staff under the theory of Respondeat Superior---making the hospital liable for the wrongdoings of the doctor and nurses working there.You may reply back to me using the Reply to Expert link if you have additional questions; and if you do, I ask that you please keep in mind that I do not know what you may already know or with what you need help, unless you tell me. Please recognize that the rating system only gives me credit for working with you when you click one of the 3 stars/faces on the right (positive rating). Also, kindly rate me based solely on my service to you in understanding the law, and not based on whether my answer is what you were hoping to hear. I have no control over the how the law impacts your particular situation, and I trust that you can understand how it would be unfair for me to be punished by a (negative rating) ----the first 2 stars/faces----for having been honest with you about the law.I wish you the best in 2012,Doug
This is not a real case. You are helping me with project for school in which I have been designated the role of the lawyer.
Thank you for your assistance so far it has been very helpful.
If the husband cannot be considered as surrogate for his wife and the physician declares the wife incapacity can he does this mean that the wife has forfeit her right to self-determinate due to her now incapacitated state.
Under the law, when a person is not legally incapacitated unless they are physically or mentally unable to speak for themselves or they have been adjudged incompetent by the court.If the physician tries to deem a patient incompetent otherwise, the husband would simply go to court and seek to be appointed the legal guardian.ALL of this could be avoided if the husband and wife had a simple Durable Health Care Power of Attorney over each other.You may reply back to me again, using the Reply to Expert link, if you have additional questions.Would you please rate me highly now, based on my assistance to you in understanding the law.I wish you the best in 2012,Doug
I am a practicing attorney with more than 27 years of experience in the legal field.
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