Court Rejects Arguments That Both Parents Need to Give Consent For Surgery

Tuesday, June 14, 2016
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

On May 22, 2016, an appeals court in Florida ruled that only one parent is needed to consent to a child’s surgery. The ruling, by a three-judge panel of the Florida First District Court of Appeal, upheld an Escambia County circuit judge's decision in a case in which the parents had separated and only the mother gave consent for a 3-year-old child to have ear-tube surgery.

What Happens When Parents Disagree in a Medical Situation?

In the case mentioned above, the child’s father objected to the surgery and filed a lawsuit against the physician at Nemours Children’s Clinic. He claimed allegations of battery and intentional interference with a child-parent relationship.

The appeals court found that the state law only requires consent from one parent and pointed to a potentially “untenable” situation if medical providers had to navigate disputes between parents about performing procedures. "We conclude, just as the trial court did, that Florida law does not require health care providers to assume the burden of refereeing or going to court to resolve disputes between parents, so long as at least one legally authorized person provides consent," said the nine-page ruling, written by Judge Susan Kelsey. "One would hope that parents committed to successful co-parenting, as they should be, would resolve these disputes between themselves or with the informal assistance of counselors or advisers.''

No State Law Requires Medical Providers to Get Consent From Both Parents.

Unfortunately, the parents in this case were going through a divorce at the time but both parents had equal custody of their children. While the mother originally scheduled both children for ear-tube surgery, it was later cancelled as the father contacted the doctor and objected.

In the lawsuit, the father alleges that the mother called back to reschedule for one of their children and the surgery was performed even though he did not consent. Interestingly, in the child’s medical charts the surgeon had noted that both parents had reached an agreement about the procedure. The child’s father alleges that the mother had misrepresented his position to the surgery.

The Ruling.

Despite both sides, the appeals court stood firm in the decision that no state law requires medical providers to obtain consent from both parents. “The bottom line is that health care providers are not required to referee parental disputes about medical care for their minor children, and may render medical care or treatment upon the consent of only one parent,” the ruling said.

Contact Experienced Health Law Attorneys.

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Saunders, Jim. “Court: Just 1 parent needed for consent to child's surgery.” Orlando Sentinel. (May 25, 2016). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

KeyWords: Nemour’s Children’s Clinic, parental consent for child’s surgery, intentional interference with a parent-child relationship, state law only requires the consent of one parent, health care defense attorney, legal representation of health care professional, experienced health law attorney, The Health Law Firm

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
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