Class Action Informed Consent Cases – What Do They Mean?

In the past month, there have been two media stories involving class action lawsuits brought by the Johnson Moore law firm against Ventura County nursing homes.  One case recently settled and the other was just recently filed.  Both cases allege that the nursing homes failed to comply with state law requiring their staff to verify informed consent was obtained by prescribers prior to giving residents psychotropic drugs.  The cases further allege that the nursing homes’ pattern and practice was to give psychotropic drugs to residents knowing in fact that informed consent had not been obtained.

Informed consent is a critical requirement of all health care treatments.  One, it ensures that patients have their individual autonomy protected and that nothing is done to their body or mind without legal consent based on good information about risks, benefits and alternatives.  Two, it leads to better care overall as patients are able to refuse proposed treatments that they believe are not going to improve their quality of life.  Who better to decide what is best for a patient than the patient herself (or a representative of the patient)?

The law regarding informed consent for psychotropic drugs in nursing homes is very clear.  Prescribers are required to obtain consent, after providing information about risks, benefits, and alternatives, and nursing homes are required to verify that informed consent has been obtained.  These rules have been around for decades.  So why have prescribers and facilities often failed to heed the rules?  It’s simple: there has never been much downside for violations.  The state Department of Public Health (DPH) rarely investigates nursing home policies and practices regarding informed consent.  When it does, it rarely takes any meaningful action.  Aside from DPH’s failures, few lawsuits are ever filed to challenge bad prescriber / nursing home practices regarding informed consent violations.  Maybe that is changing.

All around California, there is increased discussion of the misuse of psychotropic drugs in nursing homes and the applicable informed consent requirements.  Last week, a lawsuit was filed by the federal government against two California nursing homes for misusing psychotropic drugs without resident consent.  In two weeks, the California Medical Association is hosting a webinar for prescribers about informed consent requirements.  With these efforts, we expect better informed consent practices are on their way.  If not, nursing homes may find themselves in trouble, finally.


About achicotel

Anthony Chicotel is a staff attorney for CANHR. His areas of expertise include the rights of long-term care residents, nursing home litigation, health care decision-making, and conservatorships.
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Responses to CANHR blog postings do not reflect the opinions of CANHR or its staff members.

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