Can Nurses Be Required to Obtain Informed Consent?

Carolyn Buppert, MSN, JD


June 23, 2016

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In this scenario, nurses are being required to obtain informed consent for a transplant patient to receive an organ from a high-risk donor. Is this right?

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

A registered nurse (RN) wants to know the limits of responsibility of nurses when it comes to obtaining patient consent. Here's the situation:

I work as an RN and a certified clinical transplant coordinator in Pennsylvania. Recently there was an incident in which the transplant surgeon did not document consent from the patient to receive an organ from a high-risk donor.[1] Consequently, our managers now are considering requiring the RN coordinator to discuss with the patient and document consent to receive an organ from a high-risk donor. Does this fall within the scope of nursing practice?

It may be within the scope of practice of nursing to provide the patient education necessary to obtain informed consent, but that doesn't matter in this scenario. Why? Because under common law (case law) in this country, the surgeon always holds full responsibility for giving the patient the information needed to obtain informed consent. The surgeon's responsibility remains, even if the surgeon delegates that work to someone else.

My analysis of the risk in this situation is as follows: The surgeon is clearly responsible if a patient has not been given enough information to make an informed decision. If the surgeon or the hospital requires a nurse's take on the consent process, the nurse, as well as the surgeon, is responsible for meeting the standard of care. If there is a problem and a patient sues for lack of informed consent, then the nurse, the hospital that employs the nurse, and the surgeon all will be sued. So, it makes no sense for a hospital to take on a duty that is clearly the surgeon's responsibility.

Although the hospital may hope that a nurse would be more conscientious than the surgeon in giving patients information, the nurse who takes on the consent process is going to have to rely on the surgeon for some information. If the surgeon didn't remember that the donor was high-risk or didn't take the time to communicate that to the patient, then I wonder whether the surgeon would take the time to communicate important information to a nurse who is delegated the responsibility for patient consent. There is nothing in it for the nurse or the hospital if a nurse takes over for the surgeon in the consent process.

Furthermore, the surgeon is compensated for the time it takes to obtain consent through the global fee for surgery. The hospital, by agreeing to take over that work for the surgeon, could be violating Stark laws, which limit the value of a hospital's nonmonetary compensation to a referring physician to $392 per year.

If a surgeon wants to delegate the consent process to a nurse, then the surgeon should hire a nurse. That would protect the liability of the hospital and the nurses employed by the hospital.


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