Healthcare providers have a legal and ethical obligation to obtain a patient’s informed consent before medical treatment or surgical procedure.
In the following case, a nurse and surgeon played central roles in obtaining the informed consent of a surgical patient, but whether they acted responsibly is at the heart of a lawsuit.
The informed consent discussion
A woman's primary physician discovered a "cavitary lesion" in her left lung during an examination. The patient was referred to another physician for a pulmonary exam, which confirmed the lesion. A CT-guided biopsy was recommended to further evaluate the lesion.
The pulmonary physician informed the patient that the procedure was safe, with the only risk being some localized bleeding. After their discussion, the patient agreed to undergo the procedure, which another physician would perform at a local hospital.
Accompanied by her daughter, the patient arrived at the hospital, where staff drew her blood. A hospital nurse then guided them to the pre-CT area and administered Valium and Hydrocodone to the patient.
The physician performing the CT met with the patient and her daughter to discuss the procedure and the informed consent form. A nurse and the patient's daughter witnessed the discussion. While the physician and nurse believed the patient was "very alert" during the conversation, her daughter felt she seemed "a little dopey in her speech and her relaxation."
The daughter signed the informed consent form for her mother (the nurse asked the daughter to do so because of the administered medication). The physician and the nurse also signed it.
The physician performed the surgical procedure, collected several tissue samples, and evaluated the patient for complications.
In the recovery room, the patient complained of chest pain but was later discharged from the hospital.
The patient's condition deteriorated during the drive home. The daughter called an ambulance, and the patient was taken to another local hospital and then back to the hospital, where the CT scan took place.
Another physician did a general abdominal exploratory examination, which revealed punctures in her spleen. A splenectomy was performed.
The patient filed a medical malpractice case about two years after the splenectomy. In her lawsuit, she alleged, according to the principle of respondeat superior:
- The hospital acted negligently because its nurse administered medications before the physician's discussion with the patient and failed to inform the physician that the medication had been given before the informed consent discussion.
- The facility was negligent because its physician negligently performed the procedure and did not obtain the patient's informed consent.
Trial court proceedings
The hospital filed a Summary Judgment Motion on all claims made by the patient.
The hospital argued that obtaining informed consent is the treating physician's responsibility, and therefore, neither the hospital nor its employees could be held accountable for failing to do so. It further contended that it bore no liability under the principle of respondeat superior because the physician performing the CT biopsy was not a hospital employee.
The patient responded that despite the physician not being an employee, the hospital still had liability because, according to the facility's internal policies, the nurse was responsible for ensuring the patient had given informed consent.
The patient alleged that the nurse acted negligently by administering medications before the treating physician's discussion with her about informed consent and by failing to notify the physician that the medication had already been given.
She argued that, as a result of being medicated, she was unable to provide informed consent. The patient further claimed that without the medication, she wouldn't have consented to the procedure, which ultimately caused her spleen to be perforated and led to a splenectomy.
The patient also asserted that the allegations of respondeat superior couldn't be dismissed because a genuine issue of material fact existed as to whether the nurse failed in his duties governing informed consent.
The court held oral arguments and granted the hospital's Summary Judgment Motion.
The court also held that the duty to obtain informed consent was the sole responsibility of the physician, and state law hasn't extended that duty to a hospital or its staff.
The patient appealed the trial court's decision.
Appellate court ruling
The appellate court held the trial court correctly granted the hospital's Summary Judgment Motion and dismissed the patient's claims against the facility.
The appellate court emphasized that state law requires treating physicians to obtain a patient's informed consent and evaluate their mental capacity to provide it.
The court also stated that the timing of the medication administration was not significant in determining whether it should have been given before or after the physician's meeting with the patient.
In this situation, the nurse administered the ordered medications seventeen minutes before the informed consent form was signed. The physician had ample time to determine whether the patient understood what the physician shared with her and if she was capable of providing her informed consent.
The court noted that while the nurse didn't specifically recall informing the physician about administering the pre-procedure medications (though he testified that this was typically part of his responsibilities), this didn't change the physician's duty to assess whether the patient could provide informed consent.
Talking points
It's important to note that the appellate court held that the specific facts of this case did not establish the facility's liability under the principle of respondeat superior.
First, the surgeon was not a hospital employee. Second, even if the nurse employee was negligent in some way (e.g., not following hospital policy governing informed consent), his conduct had no bearing on the physician's duty to assess the patient's ability to give informed consent and obtain that consent based on the assessment.
The case also supports the clear legal doctrine that the treating healthcare provider — whether that's a physician, surgeon, or advanced practice nurse — is responsible for assessing and obtaining a patient's informed consent.
A nurse must follow facility policy and procedure for obtaining the patient's signature.
Suppose the patient hesitates to sign the consent form or has questions about the procedure. In that case, a nurse should advocate for the patient by letting the treating healthcare provider know about the patient's concerns.
Your legal obligation is also to clearly and concisely document your actions surrounding the informed consent form in the patient's medical record and inform the surgeon or other healthcare provider of any medications given and when.
