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Legal Guide for Cancer Patients

Table of Contents

Informed Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Insurance Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Privacy (HIPAA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Clinical Trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Employment Law Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Liability Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Guardianship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Estate Planning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
End of Life Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Helpful Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Introduction

If you are reading the introduction to this Guide, it is likely that you or someone you care about is fighting or has fought a battle with cancer. It is also likely that in addition to dealing with treatment decisions like radiation versus chemotherapy, numerous doctors’ visits, telling family, friends and co-workers, and simply coming to terms with this illness, you are overwhelmed by the myriad of other issues that one is confronted with when you or a loved one receives a cancer diagnosis. Such issues include guardianship for cancer survivors with children, employment issues, insurance coverage, and concerns about privacy, to name just a few.

This Guide, prepared by a committee of Texas attorneys, is intended to be an informative resource upon which you or your loved one can rely to answer legal questions like, “Am I entitled to time off work?”, “Should I have a will?” and “How do I tell my doctors that I don’t want to be placed on life support if my condition is terminal?” Each attorney who helped prepare this Guide has been personally touched by cancer in some way - whether through family or after personally fighting the battle - and drew upon those experiences while preparing this guide. Hopefully it answers many of the legal questions that are on your mind.

Cancer often forces one to contemplate one's own mortality in a new way, and causes one to think about estate planning and other end-of-life issues. That said, in today’s world, cancer is a battle that is so often won. Therefore, please do not be alarmed by the end-of-life advice found in this Guide, including the recommendation that you have a will. Everyone should have a will, but sometimes it takes a serious illness before one really gives it much thought. It is hoped that this Guide will provide answers to many of the questions you may have.

Informed consent

What is informed consent?

Consent is your authorization or permission to a health care provider to perform a certain procedure or treatment. Informed consent is the permission to perform a certain procedure or treatment after you have been advised of the risks or hazards inherent in the procedure or treatment that could influence you in deciding whether or not to consent.

What information is necessary to obtain informed consent?

Generally, the physician or health-care provider must disclose to you those risks or hazards that could influence a reasonable person in making the decision of whether to consent to the treatment. You should be advised not only of the risks and hazards of treatment, but also of the alternative treatments and the probable result if you remain untreated. In addition, the healthcare provider should explain to you the procedure to be performed, additional procedures that may be needed, benefits derived from the procedure, and consequences of not undergoing the procedure.

Who must obtain informed consent?

Generally, the attending physician must obtain your informed consent. In cases of referral, the referring physician has no duty to obtain informed consent for procedures performed by the other physician if the referring physician does not participate in the procedure. Except in emergency situations, informed consent should be obtained when the patient is able to consider the decision to consent at a reasonable time prior to the treatment.

Who is the Texas Medical Disclosure Panel? The Texas Medical Disclosure Panel is created (i) to determine which risks and hazards related to medical care and surgical procedures must be disclosed by health care providers or physicians to you or those persons authorized to consent for you; and (ii) to establish the general form and substance of such disclosures. Before you give consent to any medical care or surgical procedure that appears on the disclosure panel’s list requiring disclosure, the physician or health care provider shall disclose to you the risks and hazards involved in that kind of care or procedure. The Texas Medical Disclosure Panel list of procedures requiring full

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