Legal Risks of Delegating Informed Consent to an NP or PA

Mark Crane

Disclosures

November 30, 2017

In This Article

The Right Way to Have These Discussions

True informed consent is a process of managing a patient's expectations and not just a signature on a document, he said. "The doctor should encourage questions. When time permits, they should consider scheduling a second visit with the patient to review the consent form, clarify expectations, and ensure patient comprehension of the proposed treatment, especially with elective procedures.

Obtaining consent from the patient after a sedative or sleep-inducing medication is administered isn't recommended, Cahill said.

Although informed consent cases comprise only a small percentage of medical malpractice cases, they are still an important part of litigation. "It's typical for patients to allege, as did Mrs Shinal in the Pennsylvania case, 'If only I'd been told of this risk or alternative, of course I wouldn't have agreed to the surgery," said Lee J. Johnson, JD, a healthcare attorney in Mt. Kisco, New York.

That's why documentation is so crucial. In some jurisdictions, physicians are required to write a note in the patient's medical record that notes the proposed treatment plan, potential risks, complications, benefits, and alternatives, said Cahill.

"Our company and other malpractice insurers have sample consent forms that cover as many as 100 procedures," he said. "But it shouldn't just be boilerplate. The physician should personalize the form, and his notes, to the individual patient for it to be effective in court."

Informed Refusal Is a Patient's Right

What should physicians do if the patient refuses treatment? "Informed refusal is part of the informed consent process," Cahill said. "The risks of refusing treatment must be thoroughly discussed and documented. If possible, it's best to ask the patient to sign a form. If he won't sign, ask a nurse or other staff member to note in the record that the patient was informed of the risks and decided to forego the procedure."

Physicians don't need to discuss or list every single risk that could occur. They are required to talk about likely and significant potential complications. What would a reasonable patient in a similar situation consider significant to make a decision about whether to have the procedure? "That can vary. It often depends on the standard of care in a given community," said Cahill.

"There's no need to discuss or document every risk, just certain inherent ones," said attorney James Griffith. "In surgery, that would include infections, bleeding, nerve damage, paralysis, and death. There's no need to tell the patient he may wind up with a scar. People know that. Only the major risks must be disclosed."

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