How Much Information Must Be Listed on a Surgical Informed Consent?

Carolyn Buppert, NP, JD

Disclosures

August 05, 2008

Question

I work in an ambulatory surgery center. On an informed consent, does the donor site need to be identified on the consent form? For example, a typical consent form might say, "excision of cyst right forearm with full thickness skin graft." This would lead one to believe the graft would be coming from the forearm. Then, the surgeon comes into the room and says, "Let’s prep the abdomen; I'm taking the skin graft from there."

 

Response from Carolyn Buppert, NP, JD
Attorney, Law Office of Carolyn Buppert, PC, Bethesda, Maryland


Prior to a surgical procedure, the patient should understand where the skin graft will be taken. However, whether that information is on the consent form is not the deciding factor in determining whether the patient has been adequately informed. Nurses often worry about whether patients are getting adequate information on which to base informed consent for procedures and whether the nurse is liable for information deficits or misunderstandings.

Informed consent is a process in which qualified individuals discuss the nature, indications, benefits, and risks of treatment with patients, who then decide how they want their care or treatment to proceed. The tort of lack of informed consent is established when:

  1. A clinician fails to disclose to a patient and discuss the material risks and dangers inherently and potentially involved in the proposed therapy;

  2. The unrevealed risks and dangers actually materialize and are the proximate cause of an injury to the patient; and

  3. A reasonable person in the position of the patient would have decided against the therapy had the risks been disclosed.

The elements that should be discussed when getting informed consent are:

  1. Description of the proposed care, treatment, service, medication, intervention, or procedure;

  2. Explanation of all potential benefits, risks, or side effects;

  3. Likelihood of achieving care goals (curative or palliative);

  4. Description of any reasonable alternatives to the proposed intervention, as well as the potential benefits, risks, or side effects associated with these alternatives; and

  5. When necessary, any limitations on the confidentiality of patient information.

There are 2 ways of documenting the discussion with the patient and the patient's consent -- a signed consent form and a note in the medical record.

Legally, it is solely the surgeon's responsibility to inform the patient about the nature of the surgical procedure, the risks, benefits, and the alternatives. It is the surgeon who the patient will sue if the patient did not receive adequate information on which to base a reasoned decision. If a nurse is part of the surgical team, then it may be part of his or her job to determine whether the patient understands the extent of the procedure, the risks, the benefits, and the alternatives prior to the procedure. And while it is the surgeon's responsibility to inform the patient, ethically, the nurse may feel responsible for filling in blanks left by the surgeon. Beware of doing the surgeon's job, however, because if a nurse takes over that responsibility and the patient is misinformed and relies on what the nurse says, the nurse may be held to the standard of care of a surgeon.

That there is a signed consent form does not absolve the surgeon of all responsibility if the patient is truly uninformed, and the form should not take the place of discussion. On the other hand, not all of the information a surgeon provides needs to be written on the consent form. In the scenario above, if the surgeon told the patient that the skin graft would come from the abdomen and the patient understands that, then the surgeon would have fulfilled his or her responsibilities, regardless of whether the donor site is identified on the form. Ideally, the surgeon would have documented the details of his or her discussion with the patient in the patient's medical record.

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