Florida Court of Appeals Says Who Can Decide If Child Has Surgery When Parents Disagree

JACKSONVILLE, Fla.–(BUSINESS WIRE)–The Florida Court of Appeals relied on Jacksonville healthcare attorney
Ann Bittinger in deciding whether a surgeon can operate on a child when
one parent wants the surgery but the other does not.

“The sole relevant commentary in Florida legal publications” was an
article Ms. Bittinger wrote for The Florida Bar
Journal on Florida law on consent to minors’ treatment.

One parent’s consent is sufficient for surgery, even if the parents are
separated, and even if the surgeon knows one parent affirmatively voiced
lack of consent, the court stated in the May 25, 2016 opinion, which
clarifies just one question in the murky subject of who – including the
minor – can consent to certain treatments.

“This decision provides necessary clarity and protection for Florida
surgeons,” said Ms. Bittinger, who specializes in representing
physicians and physician groups. “Divorced parents may argue about a lot
of things. Children’s health can get caught in the crossfire.”

If a physician performs a treatment or surgery without legal consent,
that touching is considered a battery, said Bittinger, who has
represented physicians since 1998. Who can consent and to what they can
consent is tricky with minors under Florida law, she said.

In the case, Imad S. Angeli, v. Evelyn A Kluka, M.D. and The Nemours
Foundation, the minor patient’s parents, who were separated with
divorce pending, disagreed on whether their son required adenoid and ear
tube surgery. The mother initially scheduled surgery. The night before
the surgery the dad called the surgeon to say he didn’t consent. The
surgeon canceled the surgery. Months later, the mother rescheduled it.
The father called the surgeon’s office to say once again that he didn’t
consent. A nurse noted in the medical record that the father didn’t
consent. Then the mother called the surgeon’s office to say the parents’
attorneys worked out an agreement and the father would be at the surgery
to consent. The father alleged the mother misrepresented this position.
The father did not go to the surgery. Only the mother signed the consent
form. The surgeon performed the surgery. The father sued the surgeon and
her employer, The Nemours Foundation.

The court held that the consent of one parent to a non-emergency medical
procedure for a minor child is sufficient to permit the health care
provider to render such care or treatment, even if the other parent
affirmatively told the provider that he or she would not consent.

There was no bad outcome. And the father never alleged that the surgery
was not medically necessary.

The court cited Ms. Bittinger’s research that was published in the
Journal: “Although there is no Florida case on point, it is widely
understood that if one parent consents to the treatment, the provider is
protected and the medical or surgical treatment may go forward. The
other parent cannot sue the provider for battery if the treatment
commences without his or her consent. In other words, one parent’s
consent is enough as a matter of law. The provider has no duty to obtain
the consent of both parents.”

The decision speaks to just one topic in the foggy landscape of minors’
consent to treatment in Florida. Among some of the other notable
positions in Florida law, included in Bittinger’s research in the Journal:

• A person under 18 who is not emancipated is a minor.
• Minors cannot consent to treatment unless they are emancipated or the
  law contains an exception based on either their situation or the type
  of treatment.
• A minor is emancipated if the minor is financially independent and
  maintains a residence away from his parent.
• An unmarried, pregnant minor may consent to medical and surgical care
  related to her pregnancy, but can’t consent to care unrelated to her
  pregnancy. “She can consent to a c-section but not to a
  tonsillectomy,” Bittinger said.
• An unmarried, pregnant minor can consent to abortion, but not until
  her parents are notified, unless an exception applies.
• Giving birth does not emancipate a minor. A 17-year-old mother can
  consent to her child’s healthcare but not to her own.
• But if she gets married, she can consent to her own treatment.
• Becoming a father does not emancipate a minor male. Getting married
  does.
• Any minor can consent to examination and treatment of sexually
  transmitted diseases without parental consent.
• But they can’t receive non-surgical contraceptive services or maternal
  health services, without parental consent, unless the minors are
  married, have become parents, are pregnant or, in the opinion of the
  physician, would suffer probable health hazards if such services were
  not provided. “Minors can get treated for STDs without parental
  consent, but can’t get contraceptives to prevent pregnancy without
  parental consent unless married or their physician says their health
  would suffer without them.”
• A physician and other providers, including psychologists, social
  workers, and therapists, may provide substance abuse services to a
  minor without the patient’s parent’s consent.
• A child 13 years old or older can receive, without parental consent,
  mental health diagnostic and evaluative services or individual
  psychotherapy, group therapy, counseling, or other forms of verbal
  therapy from a licensed mental health professional.

“This area of law is riddled with contradictions,” Bittinger said. “It’s
no wonder the Court of Appeals is being asked to provide clarity.”

Link to the court decision (click
here) and to the Journal piece (click
here).

About Ann Bittinger: Ms. Bittinger is a
healthcare attorney, providing strategic advice to physicians and
healthcare providers across the nation. She offices in
Jacksonville, Florida, with The Bittinger Law Firm. Ms. Bittinger
is on the Board of Directors of the American Health Lawyers Association,
the premier trade association for healthcare attorneys. She is a
frequent lecturer and writer for national seminars and publications on
health law issues.

Contacts

The Bittinger Law Firm
Ann Bittinger, Esq., 904-821-9000
ann@bittingerlaw.com