Torts
— Surgery on minor child — Informed consent — Health care provider is not
required to obtain informed consent from both parents of a minor child, rather
than just one parent, before rendering non-emergency care or treatment to minor
child — Consent of one parent to non-emergency medical procedure for minor
child is sufficient to permit health care provider to render such care or
treatment — Rule applies even when health care provider allegedly knew or
should have known that other parent objected to the care or treatment — Trial
court properly dismissed father’s complaint, alleging battery and intentional
interference with parent-child relationship, against surgeon who performed
surgery on child with mother’s consent, but not father’s consent

IMAD S. ANGELI, formerly known as IMAD S. GIRGIS,
individually and also in his capacity as parent and next friend of ALEXANDER I.
GIRGIS, a minor child, Appellant, v. EVELYN A. KLUKA, M.D., and THE NEMOURS
FOUNDATION d/b/a Nemours Children’s Clinic, Appellees. 1st District. Case No.
1D15-4217. Opinion filed May 25, 2016. An appeal from the Circuit Court for
Escambia County. Ross M. Goodman, Judge. Counsel: Danny L. Kepner of Shell,
Fleming, Davis & Menge, P.A., Pensacola, for Appellant. Francis E. Pierce,
III and Sharon J. Henry of Mateer Harbert, P.A., Orlando, for Appellees.

[Circuit Court Order Published at 23 Fla. L. Weekly Supp. 459a]

(KELSEY, J.) This case raises the issue of whether a health
care provider must obtain informed consent from both parents of a minor child,
rather than just one parent, before rendering non-emergency medical care or
treatment to the minor child. We agree with the trial court’s conclusion that
the consent of one parent to a non-emergency medical procedure for a minor
child is sufficient to permit the health care provider to render such care or
treatment. We further agree with the trial court that this rule applies even
when the health care provider allegedly knew or should have known that the
other parent objected to the care or treatment. We have carefully considered,
and we reject without further comment, all of the arguments the father raises
on appeal. Accordingly, we affirm the trial court’s dismissal of the action
below and write to set forth the factual context and our legal analysis.

Parents’ Disagreement Over Child’s Surgery.

Appellant, the father of the minor child, filed a complaint
alleging battery and intentional interference with parent-child relationship,
after the defendant surgeon performed adenoid and ear-tube surgery on the minor
child with the mother’s consent, but not the father’s consent. We accept as
true the allegations of the father’s complaint, which frame the dispute in the
following factual context. The parents were separated, a dissolution of marriage
action was pending, and both parents had equal custody rights to their two
minor children. The record does not reflect any court order depriving either
parent of authority to consent to medical care for the children, nor any other
legal impediment to either parent’s consent. The mother initially scheduled
adenoid surgery for both of their minor children, but the father called the
surgeon the night before the surgeries were to occur and expressed his lack of
consent, whereupon the surgeon cancelled the surgeries.

Three months after the original surgeries were cancelled,
the father learned that the mother had re-scheduled the surgery for the younger
child, who was three years old. The sparse record before us does not include
any evidence indicating whether the child had experienced additional medical
symptoms prompting the re-scheduling of the surgery. The father alleges that he
informed a member of the surgeon’s staff by phone that he did not consent to
the procedure. The child’s medical chart includes a nurse’s note entered before
the surgery, stating that the father did not consent. The chart also includes a
follow-up note entered after the surgery stating that the mother had called
before the surgery and informed staff that the parents’ respective attorneys
had worked out an agreement and that the father would be at the hospital to
consent. The father alleges that the mother misrepresented his position. The
father did not go to the hospital for the procedure and did not give consent.
Only the mother gave written consent to the surgery, and the defendant surgeon
then performed the surgery. The father has not alleged that the mother was not
legally authorized to consent to the surgery; nor has he alleged that the
surgery was unnecessary, or that it was performed negligently, or that any
complications resulted from it.

The surgeon called the father five days after the operation
to give a follow-up report, and the father asserted that he did not know about
or consent to the surgery, did not want to speak to the surgeon, and would be
speaking to his attorney. The surgeon noted in the chart that her nurse had
notified her pre-operatively that the parents had come to an agreement to
proceed with the surgery and both would consent. The father filed the lawsuit
now at issue.

The surgeon and the hospital moved to dismiss the father’s
complaint for failure to state a cause of action, arguing among other things
that Florida law authorizes a health care provider to render non-emergency
medical care and treatment to a minor upon the consent of one parent. The
father countered that a health care provider in this situation must either
refuse to render the disputed care or treatment, or go to court for permission
to provide the care. The trial court agreed with the defendants’ analysis and
rendered the order on appeal dismissing the father’s complaint, noting that
this appears to be a question of first impression in Florida.

One Parent’s Consent Is Sufficient.

Florida’s medical consent statute provides that no recovery
shall be allowed against a health care provider based on lack of informed
consent if the provider obtains consent from the patient or another person
authorized to give consent for the patient, if the provider’s action is in
accord with accepted medical standards and practice and if the information
conveyed by the provider would give a reasonable person an appropriate general
understanding of the procedure, potential alternatives, and potential risks. §
766.103(3), Fla. Stat. (2013). The focus of the medical consent statute is the
“informed” aspect of consent rather than the identity of the person giving
consent. Nevertheless, the statute in relevant part defines a presumptively
valid consent as one “which is evidenced in writing and meets the requirements
of subsection (3) [and] is validly signed by the patient or another authorized
person.” § 766.103(4)(a), Fla. Stat. This subsection does not require consent
from all persons or even more than one of two or more people who may be
authorized to give consent, but rather only from the patient or “another
authorized person” — singular. Id.

Like the general medical consent statute, the statute on
removal of the disability of nonage of minors authorizes a parent, a legal
custodian, or a legal guardian — singular — to consent to a minor’s medical
care or treatment. § 743.0645(1)(c), Fla. Stat. (defining a “[p]erson who has
the power to consent as otherwise provided by law” as including “a natural or
adoptive parent, legal custodian, or legal guardian”). Similarly, the statute
on making health care decisions for a developmentally disabled patient
authorizes several categories of persons, including a parent — singular — to
make such decisions. § 765.401(1)(d), Fla. Stat. (providing a list of
individuals, including “a parent of the patient,” to make health care decisions
for a developmentally disabled patient in the absence of an advance directive).

No 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. Each time the
issue is addressed, directly or indirectly, the statutes authorize a singular
person with valid legal authority to consent to the provision of medical care
or treatment to a minor. To require consent from both parents would require us
to add words to the statutes, which we are not at liberty to do. Fla. Carry,
Inc. v. Univ. of Fla., 180 So. 3d 137, 151 (Fla. 1st DCA 2015) (“Courts are
not at liberty to add words to statutes that were not placed there by the
Legislature.”).

Like the statutes addressing consent to medical care of a
minor, the limited analogous Florida case law indicates that one parent’s
consent is sufficient. See O’Keefe v. Orea, 731 So. 2d 680, 686 (Fla.
1st DCA 1998) (noting parent’s [singular] right to consent and to be fully
informed); Ritz v. Fla. Patients’ Comp. Fund, 436 So. 2d 987, 989 (Fla.
5th DCA 1983) (“[T]he right to consent to medical or surgical treatment resides
in the parent [singular] who has the legal responsibility to maintain and
support such [incompetent adult] child.”).

The sole relevant commentary in Florida legal publications
also concludes that the consent of only one parent is required and protects the
health care provider from suit by the other parent:

Although
there is no Florida case on point, it is widely understood that if one parent
consents to the treatment, the provider is protected and the medical or
surgical treatment may go forward. The other parent then cannot sue the
provider for battery if the treatment commences without his or her consent. In
other words, one parent’s consent is enough as a matter of law. The provider
has no duty to obtain the consent of both parents.

Ann Bittinger, Legal Hurdles to Leap to Get Medical
Treatment for Children, Fla. Bar J., Jan. 2006, at 24, 29.

Given the existing Florida statutes, cases, and commentary
indicating a uniform understanding that the consent of only one parent or
guardian is sufficient to discharge a health care provider’s duty to obtain
informed consent before treating a minor, we reject the father’s arguments. His
argument that health care providers themselves should investigate and referee
parental disputes, or initiate court proceedings to resolve parental disputes,
is particularly ill-advised and unworkable. As the mother points out, even
routine daily circumstances frequently result in only one parent’s being
present for a child’s medical care: two-working-parent households, single
parent households, business travel, and military service, to name but a few.
The trial judge aptly illustrated the untenable position health care providers
would occupy if, as the father argued, they were required to obtain consent
from two parents or bear the burden of resolving issues or disputes between
parents about their consents:

How
is the medical professional to determine whether there are, in fact, two
parents? Is a parent named on the birth certificate as the father? Has the
father relinquished his parental rights? Are the parents divorced? Does the
divorce decree establish who has the superior authority to consent? What if
there is a biological father who has not been identified by the mother? Is it
the medical professional’s responsibility to search the putative father
registry or to do a DNA test to determine the biological father? What if the
father lies to the doctor and says the mother is deceased? Must the medical
professional require a death certificate?

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. 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
advisors. Failing that, a parent seeking to prevent the rendition of medical
care or treatment to which the other parent has consented can go to court to seek
an injunction and resolve the dispute. This would seem particularly appropriate
where, as here, the parents are already parties to a pending dissolution
proceeding. In fact, the record indicates that the father later did precisely
that in an attempt to prevent the older child from having adenoid surgery. If a
court order deprives one parent of authority to consent to a minor child’s
medical care, or the parent is otherwise not legally authorized to consent, the
burden of communicating that information to the health care provider lies with
the parent opposing the rendition of care or treatment. 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.

AFFIRMED. (WETHERELL, J. and DEMPSEY, ANGELA C., Associate
Judge, CONCUR.)

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