This Patient Needs an IV. What if She Refuses?

Carolyn Buppert, MSN, JD

Disclosures

June 15, 2017

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Question

This Patient Needs an IV. What if She Refuses?

Response from Carolyn Buppert, MSN, JD
Healthcare attorney

Assault With an IV Catheter?

A hospital-based nurse poses a question about an event that took place recently in the hospital where she works:

When they are on duty, I always ask our intravenous (IV) team to do the IV starts on my patients. One of my patients needed to have her IV removed because it was leaking, but she needed a line for a test in the morning, so it had to be restarted. The patient refused to have the IV restarted, however, and the IV nurse said that he could be charged with "assault and battery with harm" if he started an IV without her explicit consent. He said a former coworker at another facility had placed an IV in a patient who flatly refused it, and that nurse was charged with assault and battery. The case eventually was thrown out of court.

I didn't know our hospital policy on this, but the IV team nurse declined to place an IV in a patient who refused it. This patient had some issues with mentation and forgetfulness, but could, in general, direct her own care.

So, what constitutes assault and battery in a hospital setting, where we occasionally perform procedures that the patient does not want but needs? How well are we protected from liability in circumstances in which a patient is forgetful or confused?

No Consent, No Procedure

I agree that the IV team (and all nurses) should be wary of touching a patient who refuses a treatment. You don't have protection from being sued. "Battery" is defined as making unwanted, unpermitted physical contact with another. Usually, it is prosecuted only when the physical contact was harmful.

The safe way to deal with a patient who refuses an IV is to persuade the patient to accept it. If the patient persists in refusing, document what has been discussed and that the patient refuses the treatment, and notify the attending physician or covering practitioner.

Typically, patients give general consent to treatment when they sign consent forms on admission. The general consent also says the patient has the right to participate in their treatment, to be informed about their treatment, and to refuse treatment.

Here is what the California Hospital Association's consent manual (2016) says under the title, "The Patient's Right to Consent To, or Refuse, Medical Treatment"[1]:

A person does not give up the right to control what is done with his or her body and property when seeking care at a hospital. Indeed, a physician has both a legal and an ethical duty to obtain the patient's consent, or the consent of the patient's legal representative, to medical treatment. Failure to obtain the proper consent to treatment in accordance with applicable legal standards may result in a charge of battery, professional negligence (malpractice), and/or unprofessional conduct against the physician, nurses, or other health care providers, for even the simplest of procedures. If the nature of the treatment involved is complicated, the recognition of the patient's right to self-determination may require that 'informed' consent be obtained. [Cobbs v. Grant, 8 Cal.3d 229 (1972)]

The California Hospital Association manual goes on to legally define "battery" as "an intentional touching of a person in a harmful or offensive manner without his or her consent." The manual explains how this relates to healthcare treatment[1]:

Consequently, a claim of battery may be made against a physician or other healthcare provider who performs a medical procedure on a patient without the patient's consent. A battery may also arise if the patient consents to a particular procedure and the provider either exceeds the scope of the consent or performs a different procedure for which consent was not obtained. It is important to note that no wrongful intent need be present; a physician may sincerely intend to aid the patient, but still be liable for committing a battery. A medical procedure may be considered to be a 'harmful touching' (a battery) even if it is performed competently with no adverse outcome.

With respect to the patient's capacity to consent or refuse treatment owing to mentation issues, a patient is presumed competent until there is a determination—through a complicated legal process involving a judge's review of evidence—that the patient is incompetent. Only when the patient is judged incompetent to make his or her own decisions may someone else (usually a family member) make decisions. It's not the place of nurses to decide that a patient is not competent to make a reasonable decision and override what the patient says.

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