Medical Malpractice: The Ins and Outs of Informed Consent

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Nurses who interfere with the process can land in legal trouble.


One of the many duties of perioperative nurses is to make sure cases start on time. No matter how full the day's OR schedule, however, they should never rush the informed consent process. Their good intentions of trying to move cases along places them between surgeons and patients, and puts them and your facility at risk of being sued for failing to provide proper informed consent before procedures.

Informed consent is essentially a social contract between a surgeon and a patient. The surgeon is supposed to have a discussion with the patient about the benefits, risks and alternatives to the procedure so the patient can make an informed decision about whether to go through with the surgery. The conversation is what puts the "informed" in informed consent.

Let's say a pre-op nurse asks a patient to sign the consent form, but the patient says he was online the night before and read that impotence was a potential side effect of the radical prostate surgery he's scheduled to undergo, and wants to know how likely that outcome is for him. The nurse wants to keep the OR workflow going and therefore tells the patient to sign the form and that the surgeon will be in momentarily to answer his questions.

The nurse closes the chart and leaves to care for other patients. Moments later the anesthesiologist walks in and sees the signed form, so he pre-medicates the patient, who is now under the influence of a sedative. The surgeon comes in, and the anesthesiologist informs him that the consent form has been signed and the patient is ready for surgery. The patient is wheeled to the OR and the procedure is performed.

The patient now can sue for the lack of informed consent, saying he had questions and the surgery proceeded without his permission. The surgeon can be sued even if he didn't know the patient had questions. The nurse can be sued as well, which is something many nurses don't realize. In this case, the nurse intervened in the physician-patient relationship and prevented the surgeon from fulfilling the social contract with the patient. The nurse essentially became the physician by not allowing the patient an opportunity to get his questions answered.

Your facility could face legal action as well. Nurses can be contributorily negligent by bypassing policies and procedures. In this example, your facility likely has a policy that states no surgery can start unless the patient signs a consent form. Circulating nurses or other members of the operating room staff must make sure that happens, and, even though it sounds simple, it doesn't always get done. If the procedure takes place without a consent form being signed, your facility could now be found negligent. The physician can still be sued as well, but the damages would now be split between the surgeon and your facility.

A better approach

In the court's eyes, nurses don't obtain informed consent, they witness and facilitate it by making sure it happens and is documented. If they don't facilitate it to the best of their ability and the consent wasn't obtained, they could be found liable.

Surgeons should avoid waiting until moments before procedures begin to have informed consent conversations.

Tell nurses that if this scenario ever comes up, they should put the consent form down, wait for the surgeon and patient to converse, then make sure the form gets signed afterward. They shouldn't be so focused on getting other work done and think this essential conversation can wait. It can't. Nurses who have patients sign consent forms before all their questions are answered by the operating surgeon interject themselves into a very important relationship, and potentially into a legal fray. You might be busy for months giving depositions and going to court.

You could argue the surgeon in this example put the nurse in a bad position by not having the conversation with the patient earlier in the perioperative process. The nurse, however, did the same thing to the doctor by leaving to take care of another patient. She should have told the patient that the surgeon would be in soon and hold off on getting the form signed until his questions were answered. Surgeons should avoid waiting until moments before procedures begin to have informed consent conversations. Doing so will not only help the surgeon and the facility avert a legal case, but also puts you in the role of patient advocate.

Allowing a patient to have a procedure performed before all their concerns are addressed is negligent. While it's best for the conversation to take place well ahead of time, sometimes that's not possible. In these instances, nurses should confirm patients don't have any more questions before the procedure. If patients don't, nurses should document the surgery can proceed. OSM

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