Legal Issues in Healthcare

Standards to determine causation in an Informed Consent                         

Informed consent is the permission given by a patient with full knowledge and possible effects to a doctor for treatment with all knowledge on potential risks and benefits. There are three standards used to determine causation in an informed consent case. The three standards used for determination of causation in an informed consent include subjective approach test, objective approach test and modified objective standard (Pozgar, no dates).

In the subjective approach, standard causation is established solely depending on patient testimony. Patients should testify and prove that they will not have consented to the procedure or any form of treatment if they had earlier been told on the particular consequences and risks of the procedure or treatment involved. The subjective test gives the patient the right to make medical decisions regardless of if it is rational or reasonable and inquires as to what the patient would have done in the face of adequate disclosure. Resolution of causation made under subjective approach standard exclusively depends on the credibility of the patient’s testimony. Subjective standard poses purely on a hypothetical question meaning if the same patient complicated after the procedure would the same patient had refused the procedure had he known the consequences (Pozgar, no dates). It is difficult to preclude recovery or justice in an informed consent case where the patient succumbed due to complications related to unforewarned collateral consequences using a subjective standard test.

Pros and Cons of the standards

The objective standard does away with patient’s lawyer testimony and states that there ought to be a causal relationship between the doctor’s failure to notify the patient against the risks involved and the injury itself to the plaintiff. The disagreement was whether the patient had been advised on complications involved and if not whether the failure to advice caused the injuries. Objective standard weighs between advantages and disadvantages of the procedure. Causation in informed consent cases is best resolved on a fair basis. Patient testimony is relevant but is not controlling. In objective standard, the factfinder takes into account the characteristics of the plaintiff to include age, fears, religion, medical conditions, and idiosyncrasies. The objective standard allows the ease of applying uniform standard and maintain flexibility of allowing the finder of the fact to make appropriate changes.

Modified objective standard tries to balance the right of the patient’s self-determination with concerns espoused in Canterbury of subjecting the doctor to the bitterness of patients following undesirable results. Modified objective standard injects at least one extra level of complexity into the analysis of causation (Pozgar, no dates). The fact finder must first suspend his or her idea, then place him/herself in the mind of the specific patient, and then try to determine what the said patient would have decided regarding the proposed medical treatment or procedure if the particular patient were acting with rationale and reason.

Tennessee court adopted an objective approach standard. Am also supporting the court for taking this approach first because it measures the conduct of the person in question with that of a reasonable person in the same circumstances (Anderson, Birch & Barker, 1999). The objective approach also respects the patient right to self-determination.

National Health Corp Case reason for losing

National Health Corp (NHC) lost in its application for a certificate of need in Carolina due to an insufficiency of medical funds to support the number of medical beds it’s proposed in its application. Department of health and environmental control also found that NHC’s proposed project was not financially feasible and there was enough evidence to support that. NHC records were also inconsistent in the last four year budgets submitted and raised serious questions regarding their financial feasibility of the project (S.C. App., 1989).

NHC could have prepared itself both in terms of enough and proper documentation, finances, and efficiency of the proposed health facility. The budget application of NHC should be consistent with the funding plans from SHHSFC. NHC should also make sure that their budgets over the years are consistent and correct to avoid financial queries. NHC should have come up with the exact number of beds they can fully fund before their application instead of coming up with the number of beds they cannot support.

Tennessee’s criteria for a certificate of need

States do not require to have certificates of obligation before a business person or provider can provide certain healthcare services. Certificate of need do not control cost or increase any charity care as thought but have lasting adverse effects on the provision of healthcare services. Certificate of need decreases the availability of most health care services and also reduces hospitals and health facilities capacities and capabilities they can handle like cutting the number of admitted patients due to the limitation in the number of hospital beds (Robert, 2005). There is also a limitation of some essential health care services such as radiological equipment to include MRI and CT scans which play a vital role as a patient diagnostic tool. As far as the limit control costs of health care services, the intended outcomes have not been seen but have rather decreased the services offered by health care units (Robert, 2005). Services listed by Tennessee as requiring a certificate of con does not need to have so. These services include a nursing home, hospitals, hospice, rehabilitation centers, and psychiatric unit. As discussed earlier I do not support these services of having a certificate of need because they limit access to health care services due to control.



Robert J. (2005). The U.S. Healthcare Certificate of Need Sourcebook. Beard Books. Retrieved 2019-03-22. – “A state-by-state analysis of the certificate of need statutes, regulations, case law, and key state health department personnel.”

Pozgar G. D., Chapter 12 (pages 396 – 413), Legal and Ethical Issues for Health Professionals. (4th Edition).

Anderson C. J., Birch D. & Barker J. J., (1999). Ashe v. Radiation Oncology Associates. Concur. Tenn.

S.C. App., (1989). National Health Corp. v. South Carolina Dept. of Health and Environmental Control 298 S.C. 373, 380 S.E.2d 841, 26 Soc.Sec.Rep.Serv. 474