Carolyn Buppert, NP, JD

Disclosures

September 11, 2006

Question

Recently, I had a discussion about consent with a clinician in the hospital where I work. We were doing a shoulder arthroscopy rotator cuff repair, possible open. The consent stated only "arthroscopy right shoulder, rotator cuff repair." There was no mention of the open procedure. We have been doing rotator cuff repairs through the scope. Does "possible open" have to be listed on the consent?

Response From the Expert

Response from Carolyn Buppert, NP, JD
Attorney, Private Practice, Annapolis, Maryland

For a patient's consent to surgery to be "informed," the patient must be told what is expected to happen (arthroscopy via the scope) and what might happen if the procedure can't be completed in the expected manner (open repair). The standard of care on informed consent is this: What would a reasonably prudent clinician with the same background, training, experience, and who practices in the same community have disclosed to a patient in the same or similar situation?

Perhaps, in this situation, the surgeon explained that the open procedure might be necessary. In that case, it is possible that the phrase "arthroscopy right shoulder, rotator cuff repair" on the consent form adequately describes the procedure. However, the addition of "possible open repair" would be better documentation that the patient was informed of the possibility of an open procedure, in the event that an open repair was performed and the patient forgot that the surgeon had informed him or her of that possibility.

The doctrine of "informed consent" is based on 2 principles. First, an individual has a right to determine what happens to his or her body. Second, it is the duty of the healthcare provider performing the procedure to provide a patient with enough information to ensure that the patient's decision to undergo the procedure is based on knowledge of the necessity of the procedure, alternate treatment options, risks, and likelihood of success or failure. If a patient contends that he or she did not consent or did not have enough information to give an informed consent, the patient may sue the healthcare provider on the basis of battery or negligence. In order to prevail in a lawsuit, the patient must show that had he or she known of the risks or of less risky alternative treatments that were not disclosed, the patient would not have opted for the chosen treatment or procedure.

Keep in mind that it is the surgeon's responsibility to provide the patient with information about the surgery. If the surgeon delegates that responsibility to a physician assistant or nurse practitioner, and the patient later sues for lack of informed consent, it is the surgeon who is ultimately responsible. You are helping out the surgeon by suggesting that the consent form be as accurate and complete as possible.

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