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I'm in the USA, New York. I find nowadays that it's common -- maybe the majority of cases -- in which forms are to be signed for some medically-related purpose, that the system and/or provider actively prevents me from seeing what I'm agreeing to with my signature. Some examples:

  • At the pharmacy, picking up medication, there's a digital tablet with an output display, plus buttons and signing input with a stylus. When certain information screens pop up, the clerk always reaches over the screen to my side and quickly hits the "Ok" buttons in sequence before I can read anything, leaving me with a blank screen they expect me to sign.
  • At the phlebotomist, before testing, I'm handed a dedicated tablet device that I'm asked to sign. There is no text, output, or documentation anywhere visible that I can read for what I'm signing to (the device is purely for stylus input, and doesn't even have any capacity to show output).
  • Going for a surgical procedure, a staffer shows up with consent documents on a tablet for me to sign immediately before I'm to be wheeled into the surgery room -- after I've been prepped and all of my possessions have been removed, including my glasses, so I can't read the documents that I'm signing.

In all of these cases, if I say I need to see what I'm signing, the staffer will act totally flummoxed (as though I'm the only person who's ever asked to see the documents in question), apparently have no way of showing me what I'm signing to, and repeatedly give me what they think is a verbal summary of the contents (e.g., "You need to sign for the medication.")

In short, this really doesn't feel right. Are there any legal requirements around these consent-type signature instruments, and if so, what enforcement mechanisms exist/what outside agency can one forward complaints toward?

Among the texts I've struggled to get access to are things like consent statements to sharing information between different providers (which has ramifications in NYS law under Title 10, Section 300.5), declining to receive oral interpretation of prescribing information at the pharmacy (required under NYS Title 20, Ch. 4, Subch. 3, 20-621), and authorizing payments from Medicare -- which I would have thought would have some oversight from state and federal governments.

This question about whether input-only signing devices are legally binding is very related, but I'm asking something distinct. What enforcement or outside-agency complaint mechanism exists in the case where these service providers absolutely will not show you what you're signing to, or actively take steps to prevent you from reading them?

Daniel R. Collins
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3 Answers3

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What enforcement or outside-agency complaint mechanism exists in the case where these service providers absolutely will not show you what you're signing to, or actively take steps to prevent you from reading them?

If the consent is not found to be sufficient by a court, the provider could be exposed to professional malpractice liability or a civil lawsuit for battery. In the case Espander v. Cramer, 903 P.2d 1171 (Colo. App. 1995), the court explains that "The law in Colorado distinguishes between an action based on no consent (battery) and one based on lack of informed consent" which can be medical malpractice.

A good example of this can be found at in the case of Bloskas v. Murray, 646 P.2d 907 (Colo. 1982) involving an alleged lack of informed consent provided prior to an ankle surgery with a bad outcome. These issues are also explored, for example, in the cases of Stauffer v. Karabin, 30 Colo.App. 357, 492 P.2d 862 (1971) and Martin v. Bralliar, 36 Colo.App. 254, 540 P.2d 1118 (1975).

Whether informed consent was provided is generally a question for the jury in light of the definition of informed consent provided in a standard jury instruction, based upon all of the evidence presented at trial.

A good rule of thumb, however, is that merely signing a signature pad without further explanation, while it might constitute sufficient consent to avoid liability for battery, is probably not informed consent, which calls for a more detailed explanation from a professional regarding the risks and benefits involved in a medical treatment in most cases.

As for proactive state law there is very little, although medicine is a regulated profession and subject to professional licensing discipline that varies in vigor between U.S. states (in most states, it is anemic and is often secret when it is applied).

ohwilleke
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One can file complaints with the provincial professional governing bodies ("colleges"). E.g.

  • the College of Physicians and Surgeons
  • the College or Pharmacists

Some of the tactics you describe may not amount to informed consent (although it is not even clear that some of them are even for the purpose of obtaining consent). To the extent that this is the case, the practitioner is increasing their risk of a successful negligence claim in the case that you were to be injured, and if a reasonable person in your shoes properly informed of the risk would have declined the procedure.

Jen
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Generally speaking in South Africa there is a requirement for both parties to a contract to have a real desire to fulfill the agreement present at the signing.

There is also a requirement that there be no chicanery used to prevent or in anyway circumvent the proper understanding of the rights and obligations for both parties I.r.t the agreement.

There is also the well established doctrine that is present in many jurisdictions of ambiguity in contract law should be used for the benefit of the party who did not draft the agreement.

It would be interesting to learn how binding the pressing of an OK button on a tablet would be. If somehow accepting terms on a tablet would be analogous to a verbal agreement, but without proper discourse in to what exactly you are signing (or clicking) for it is unlikely to stand up in court.

Neil Meyer
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