Legal Risks of Delegating Informed Consent to an NP or PA

Mark Crane

Disclosures

November 30, 2017

In This Article

Lawyers Weigh in on Informed Consent

"Surgeons should do most of the informed consent, but part of the process has been done by nonphysicians," said John Gismondi, a plaintiff's attorney in Pittsburgh. "From the defense point of view, the problem is this ruling may prohibit them from asking the patient whether they received information on certain risks. If it's done by a nonphysician, it won't be admissible in court. You could see more informed consent lawsuits, but I doubt it will be a significant increase. The decision slightly ties the hands of defendant doctors."

Richard F. Cahill, JD, vice president and associate general counsel for The Doctors Company of Napa, California, the nation's largest malpractice insurer, said that the Pennsylvania Supreme Court was correct. "It's been established law for more than 100 years that the physician must personally conduct the informed consent discussion. Other states may have different rules, but the custom around the nation has been for the surgeon to do it himself."

James Lewis Griffith, Sr., a veteran malpractice attorney in Blue Bell, Pennsylvania, who has represented both physicians and plaintiffs, was more emphatic. "The decision simply restates what Pennsylvania law has always been. It's always been the doctor's responsibility. Unfortunately, too many doctors think informed consent is having a nurse hand a patient a consent form and saying, 'Here, sign this so we can get started.'"

The AMA and state medical society position "is just an example of doctors trying to find ways to shirk spending time with patients. If a doctor doesn't take the time to do proper informed consent, that's considered battery under the law, although it usually isn't prosecuted."

"Doctors are pressed for time, partly due to low reimbursements. But that's no excuse," he said. "The NP or PA isn't qualified to provide the material risks and alternatives. Informed consent just doesn't have to take that much time, and many doctors don't take it seriously. I had one doctor client I represented five times in informed consent cases. I spent a lot of time explaining the law to him. He paid no attention. Finally, I refused to represent him and told him to find another lawyer."

When Can NPs and PAs Provide Informed Consent?

The growth in the number of NPs and PAs has led to physicians relying on them to do more in the informed consent process. What can they legally do?

"We don’t instruct doctors on what to do," said Richard Cahill of The Doctors Company. "We provide information about best practices. It's important for doctors to follow their state laws and understand the scope of practice for NPs and PAs. We believe that these allied professionals are permitted to provide informed consent only if they are the ones doing the procedure under their scope of practice."

"If an adverse event occurs, the physician will still be named as a defendant in the lawsuit if the NP or PA is an employee of the practice," he said. "If they have their own practices and act as independent contractors, the physician can still be held liable if the patient can establish that he wasn't properly informed of that fact," Cahill said. "That's why we advise physicians to obtain vicarious coverage for independent contractors for whom physicians may be held legally liable and for which the practice's basic malpractice insurance policy may not cover."

Medical staff members can assist in the informed consent process by handing out literature, answering administrative questions, and witnessing the signing of the informed consent form, Cahill said. Physicians should check their state laws about scope of practice for NPs and PAs.

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