Do Both Parents Have to Consent to a Child’s Surgery Under Florida Law?

A physician may be liable for medical malpractice in Florida if he or she fails to obtain a patient’s informed consent before performing a surgical procedure. “Informed consent” means more than a quick description of the procedure. Florida law requires the doctor give the patient “a general understanding of the procedure, the medically acceptable alternative procedures or treatments, and the substantial risks and hazards inherent in the proposed treatment or procedures.”

Court Rejects Father’s Lawsuit

When the patient is a minor, the doctor must obtain informed consent from a parent. But what if the child’s parents disagree with regard to informed consent? A state appeals court in Tallahassee recently addressed this subject.

This case involves a married couple that had separated and were in the process of obtaining a divorce. During the separation, the parents retained joint custody of their two children. The parents sharply disagreed over whether both children should undergo adenoid removal. This is a surgical procedure designed to remove the adenoid glands; when enlarged, these glands can cause breathing problems and ear infections in children.

The mother wanted the children to have their adenoids removed. The father did not. At one point the mother scheduled one of the children for surgery without the father’s consent. The father said he called the hospital and told them not to perform the operation. The surgeon nonetheless performed the operation, citing the mother’s written consent. The father subsequently sued the surgeon and the hospital for violating Florida’s informed consent law.

The First District Court of Appeal, affirming a trial judge’s earlier decision, dismissed the lawsuit. The court said one parent’s informed consent to a child’s surgery is sufficient to comply with Florida law. (It should be noted the father did not accuse the surgeon of negligence or malpractice with respect to the actual surgery, only that it was performed without his consent.) The court noted that “[n]o Florida statute requires that a health care provider obtain consent from both parents or from more than one among multiple people who are authorized to give consent for medical care of a minor.” Indeed, all of the relevant Florida statutes refer to “parent” in the singular. Requiring consent from both or multiple parents would therefore require the courts “to add words to the statutes, which we are not at liberty to do,” the First District explained.

The court went on to say that requiring two-parent consent would place health care providers in the “untenable position” of refereeing “parental disputes” or, alternatively, locating an absent parent. As the trial judge in this case asked, rhetorically, “What if there is a biological father who has not been identified by the mother?” Is the surgeon required to locate him before operating on a child where the mother’s informed consent has already been obtained? The trial judge and the Court of Appeal said the answer was “no.”

Has Your Child Been Injured Due to Medical Malpractice?

Even with informed consent, a physician or hospital may still be liable for the negligent performance of an operation on a child. If your child has been injured due a health care provider’s misconduct, you should speak with an experienced Clearwater medical malpractice attorney as soon as possible. Contact the Law Office of Paul B. Genet, P.A., if you require immediate assistance.

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