OR nurses' problems and responsibilities in consent forms
Q
In my hospital, there is sometimes a discrepancy between the operative procedures listed on a patient's OR consent form and the surgeon's preoperative statement in his progress notes. For example, the patient's consent form may say simply, "repair of ventral hernia." However, the surgeon's progress notes may indicate that in addition to repair of the ventral hernia, the surgeon intends to do a repair of an existing ileostomy. If a discrepancy of this kind is discovered by the OR supervisor just as the surgery is about to begin, can the OR supervisor insist that this elective surgery be postponed until the discrepancy is resolved? What is the potential liability of OR nurses in such a situation?
A
The purpose of the operative consent form used in your hospital is to identify clearly the facility where the operation will take place, the surgeon who will perform the operation, the specific surgical procedure(s), the fact that the anesthetic has been discussed with the patient, the risks involved as well as the alternative options for treatment, and finally, the fact that the patient, having been made aware of all of the above, has signed the consent form voluntarily and without any guarantee of surgical results. The practice of the physician you described, whereby he includes in his preoperative statement the fact that he intends to do proce-
dures not outlined on the consent form, is extremely risky from a personal liability point of view. Also, it may reflect an unauthorized assault on the body of the patient. Anticipating the likelihood of such discrepancies from time to time between the progress notes and the surgical consent form, your hospital should have a procedure to guide the OR supervisor when she is confronted with such a situation. When there is a clear-cut case of a blatant attempt to hide from a patient the fact that a surgeon intends to perform an unauthorized procedure, and when a delay in the operation would not cause any physical harm to the patient, the surgery should be postponed until the discrepancy is resolved. On the other hand, when there is simply a question of doubt as to whether the patient and the surgeon have a meeting of the minds as to the proposed surgery, such a doubt should be resolved in favor of the surgeon. In this latter situation, the planned surgery should be performed without delay. In either case, there would be no recognizable liability attributable to the OR nurse(s) unless it could be established as a matter of fact that the nurse(s) conspired with the surgeon to deceive the patient into signing a consent form that did not accurately reflect what the surgeon intended to do in the course of the operation(s).
Q Sometimes during an operation, a surgeon will announce to all involved that he intends to do a procedure, eg, sterilization, for which the patient has not given written consent. The surgeon attempts to justify his decision by assuring the nurses and technicians that he has the patient's verbal consent. Where does this leave the scrub and circulat-
d+ AORN Journal, July 1978, Vol28, No 1
83
It is entirely possible that, in a last-minute discussion with the patient after the consent form had been signed, the surgeon and patient may have agreed on additional and separately identified surgery. A patient, scheduled for surgery, might casually say to the surgeon, “While you’re at it, will you remove the two moles or the two sebaceous cysts on my back?” The surgeon may casually reply, “Sure, I’d be glad to and there’ll be no extra charge.” Even if the patient later challenges what he then alleges to be the physician’s “unauthorized” surgery, the OR nurses will be protected if the nurse’s notes in the operating room reflect the fact that the surgeon made a statement to them regarding the verbally agreed-upon additional procedure(s). Even if there is a discrepancy between the surgeon’s postoperative notes and the nurse’s notes, both might be explainable and believable. What is important in this context is that the nurse’s notes reflect the assurances given to them by the surgeon regarding his preoperative verbal agreement, supplementing a written consent form executed by the patient.
surgeon relative to what he and the patient actually agreed upon in their preoperative conference. This remedy for incomplete consent forms is as good a procedure as any that has come to our attention. However, in the Iast analysis it must be recognized as simply a make-shift remedy and not a satisfactory solution to the underlying problem. Incomplete and defective consent forms, in relation to elective surgery, should be discovered soon enough to correct the deficiency and properly complete the form prior to the patient’s being medicated and dispatched to the O R holding area. The risk in the use of the form described is the reliance of surgeons, OR supervisors, and others involved in the consent form process on this last-minute remedy for what can only be described as a careless practice. Frequently, all it takes is the deferring of one or two operations under such circumstances for the surgical staff and the OR nursing staff to become conscious of the necessity for properly completed consent forms prior to the removal of the patient from his hospital room to the surgical suite. The form described, even though signed at the last minute by the surgeon as an attempt to satisfy the legal requirement of an informed consent, does in fact cover any liability that would otherwise be attributable to the OR nurses. This assumes that the responsibility for getting the consent form signed in the first instance is not that of the nurses in question.
Q It is not uncommon in my hospital to find
Q Some operations are clearly emergency
ing nurses if the patient later challenges the physician’s actions? If the surgeon’s statement about verbal consent is charted by an OR nurse, will this protect the nurses involved in the event the patient later sues everyone who participated in the operation?
A
that an operative permit is unsigned or otherwise incomplete when the patient is already premedicated and in the OR holding area. To cover the surgeon and OR nurse-employees, the hospital has devised a form that the surgeon signs stating he has discussed the operation with the patient and has the patient’s verbal informed consent. What so you think of such a remedy for incomplete consent forms? Does such a form, signed at the last minute by the surgeon, cover any liability that might otherwise be attributable to the OR nurses?
A
Obviously your hospital recognized a frequently recurring problam and has attempted to do something more than rely on the progress notes or postoperative statement of the
86
in nature; others are clearly elective. Still other operations are subject to individual classification. Some surgeons label these cases emergencies; others would consider such cases elective. If a surgeon decides that a patient requires surgery and labels it a “Statemergency,” what kind of documentation should the surgeon be required to make in support of this decision? Can he direct a nurse to do the documentation? If a nurse feels that an emergency is not present, can he or she refuse to scrub or circulate on this kind of case?
A
The practice of medicine is both an art and a science. Some decisions made by surgeons are not scientifically measurable. In distin-
AORN Journal, July 1978, Val 28, No 1
guishing between elective situations and emergency cases, surgeons must exercise the art of medicine in the judgment they make relative to the urgency for surgery. This decision for emergency surgery usually obviates the necessity of getting a prior consent form from a patient since it is universally implied that the average person wants life-saving measures in a critical physical situation. In such cases, there is a presumption that the patient would consent to such surgical procedures as are necessary to save his life and preserve his health. When a surgeon recognizes what he considers to be such an emergency, the fact of his labeling the clinical situation an emergency together with the medical justification for the Stat-surgery should be recorded by the surgeon. Because of the exigencies of such a situation, such documentation is usually included in the postoperative surgical report. It would be inappropriate for a physician to require a nurse to do such documentation, A nurse could refuse to carry out such a secretarial order. However, even though a nurse may be in disagreement regarding the presence of an emergency serious enough in nature to warrant Stat surgery, he or she cannot legally refuse to scrub or circulate on such occasions. The nurse's failure to provide nursing assistance to the surgeon in this situation could be labeled abandonment of his or her responsibility as a professional registered nurse. It could result not only in a malpractice lawsuit but in serious disciplinary action against him or her by the board of nursing registrqation and licensure.
Q
In my hospital, if a surgeon glances at a consent form just before beginning an operation and decides it is not adequately descriptive of the planned surgery, he may delay the procedure. He may ask to have the patient sign a new consent form. Because such a patient is usually premedicated (eg, 50 mg meperidine hydrochloride, 50 mg hydroxyzine hydrochloride, 0.4 mg atropine), we wait ten minutes before asking the patient to sign the new form. Is this sufficient time from a legal point of view? If not, how should we handle such a situation, legally speaking?
A
It is the prerogative of the cautious surgeon to declare a delay in a proposed operative procedure until he is satisfied that the consent form adequately reflects the agreement he reached with the patient regarding the nature, scope, and risks of the operation. However, the new consent form would have no legal validity unless it could later be demonstrated that the patient was alert, conscious, knew where he was, and understood the language and meaning of the new consent form. It is hard to visualize this state of consciousness ten minutes after the type of premedication described. As a practical matter, the surgeon who has delayed the operative procedure should examine the patient prior to the execution of the new consent form to determine if the patient is conscious, alert, and capable of giving an informed, voluntary consent. When it is not convenient for the physician to conduct such as examination, he should request information regarding the patient's vital signs, consciousness, and awareness of surroundings from a nurse who is observing the patient. The nurse's notes relative to the execution of the second consent form should include reference to the fact that the patient was observed and determined to be conscious and capable of signing the second consent form by the surgeon or by someone assigned for that purpose by the surgeon.
William A Regan, JD Managing partner Regan, Carberry, and Flynn Providence, RI
If you have questions on OR nursing law you would like answered, please send them to William A Regan, JD, clo AORN Journal, 10 1 70 E MississippiAve, Denver, Colo 8023 1. Questions of general interest will be selected for replies in this column. Other questions will not be answered. Questions will not be acknowledged or returned.
AORN Journal, July 1978, V o l 2 8 , No 1
87
Q
In my hospital, there is sometimes a discrepancy between the operative procedures listed on a patient's OR consent form and the surgeon's preoperative statement in his progress notes. For example, the patient's consent form may say simply, "repair of ventral hernia." However, the surgeon's progress notes may indicate that in addition to repair of the ventral hernia, the surgeon intends to do a repair of an existing ileostomy. If a discrepancy of this kind is discovered by the OR supervisor just as the surgery is about to begin, can the OR supervisor insist that this elective surgery be postponed until the discrepancy is resolved? What is the potential liability of OR nurses in such a situation?
A
The purpose of the operative consent form used in your hospital is to identify clearly the facility where the operation will take place, the surgeon who will perform the operation, the specific surgical procedure(s), the fact that the anesthetic has been discussed with the patient, the risks involved as well as the alternative options for treatment, and finally, the fact that the patient, having been made aware of all of the above, has signed the consent form voluntarily and without any guarantee of surgical results. The practice of the physician you described, whereby he includes in his preoperative statement the fact that he intends to do proce-
dures not outlined on the consent form, is extremely risky from a personal liability point of view. Also, it may reflect an unauthorized assault on the body of the patient. Anticipating the likelihood of such discrepancies from time to time between the progress notes and the surgical consent form, your hospital should have a procedure to guide the OR supervisor when she is confronted with such a situation. When there is a clear-cut case of a blatant attempt to hide from a patient the fact that a surgeon intends to perform an unauthorized procedure, and when a delay in the operation would not cause any physical harm to the patient, the surgery should be postponed until the discrepancy is resolved. On the other hand, when there is simply a question of doubt as to whether the patient and the surgeon have a meeting of the minds as to the proposed surgery, such a doubt should be resolved in favor of the surgeon. In this latter situation, the planned surgery should be performed without delay. In either case, there would be no recognizable liability attributable to the OR nurse(s) unless it could be established as a matter of fact that the nurse(s) conspired with the surgeon to deceive the patient into signing a consent form that did not accurately reflect what the surgeon intended to do in the course of the operation(s).
Q Sometimes during an operation, a surgeon will announce to all involved that he intends to do a procedure, eg, sterilization, for which the patient has not given written consent. The surgeon attempts to justify his decision by assuring the nurses and technicians that he has the patient's verbal consent. Where does this leave the scrub and circulat-
d+ AORN Journal, July 1978, Vol28, No 1
83
It is entirely possible that, in a last-minute discussion with the patient after the consent form had been signed, the surgeon and patient may have agreed on additional and separately identified surgery. A patient, scheduled for surgery, might casually say to the surgeon, “While you’re at it, will you remove the two moles or the two sebaceous cysts on my back?” The surgeon may casually reply, “Sure, I’d be glad to and there’ll be no extra charge.” Even if the patient later challenges what he then alleges to be the physician’s “unauthorized” surgery, the OR nurses will be protected if the nurse’s notes in the operating room reflect the fact that the surgeon made a statement to them regarding the verbally agreed-upon additional procedure(s). Even if there is a discrepancy between the surgeon’s postoperative notes and the nurse’s notes, both might be explainable and believable. What is important in this context is that the nurse’s notes reflect the assurances given to them by the surgeon regarding his preoperative verbal agreement, supplementing a written consent form executed by the patient.
surgeon relative to what he and the patient actually agreed upon in their preoperative conference. This remedy for incomplete consent forms is as good a procedure as any that has come to our attention. However, in the Iast analysis it must be recognized as simply a make-shift remedy and not a satisfactory solution to the underlying problem. Incomplete and defective consent forms, in relation to elective surgery, should be discovered soon enough to correct the deficiency and properly complete the form prior to the patient’s being medicated and dispatched to the O R holding area. The risk in the use of the form described is the reliance of surgeons, OR supervisors, and others involved in the consent form process on this last-minute remedy for what can only be described as a careless practice. Frequently, all it takes is the deferring of one or two operations under such circumstances for the surgical staff and the OR nursing staff to become conscious of the necessity for properly completed consent forms prior to the removal of the patient from his hospital room to the surgical suite. The form described, even though signed at the last minute by the surgeon as an attempt to satisfy the legal requirement of an informed consent, does in fact cover any liability that would otherwise be attributable to the OR nurses. This assumes that the responsibility for getting the consent form signed in the first instance is not that of the nurses in question.
Q It is not uncommon in my hospital to find
Q Some operations are clearly emergency
ing nurses if the patient later challenges the physician’s actions? If the surgeon’s statement about verbal consent is charted by an OR nurse, will this protect the nurses involved in the event the patient later sues everyone who participated in the operation?
A
that an operative permit is unsigned or otherwise incomplete when the patient is already premedicated and in the OR holding area. To cover the surgeon and OR nurse-employees, the hospital has devised a form that the surgeon signs stating he has discussed the operation with the patient and has the patient’s verbal informed consent. What so you think of such a remedy for incomplete consent forms? Does such a form, signed at the last minute by the surgeon, cover any liability that might otherwise be attributable to the OR nurses?
A
Obviously your hospital recognized a frequently recurring problam and has attempted to do something more than rely on the progress notes or postoperative statement of the
86
in nature; others are clearly elective. Still other operations are subject to individual classification. Some surgeons label these cases emergencies; others would consider such cases elective. If a surgeon decides that a patient requires surgery and labels it a “Statemergency,” what kind of documentation should the surgeon be required to make in support of this decision? Can he direct a nurse to do the documentation? If a nurse feels that an emergency is not present, can he or she refuse to scrub or circulate on this kind of case?
A
The practice of medicine is both an art and a science. Some decisions made by surgeons are not scientifically measurable. In distin-
AORN Journal, July 1978, Val 28, No 1
guishing between elective situations and emergency cases, surgeons must exercise the art of medicine in the judgment they make relative to the urgency for surgery. This decision for emergency surgery usually obviates the necessity of getting a prior consent form from a patient since it is universally implied that the average person wants life-saving measures in a critical physical situation. In such cases, there is a presumption that the patient would consent to such surgical procedures as are necessary to save his life and preserve his health. When a surgeon recognizes what he considers to be such an emergency, the fact of his labeling the clinical situation an emergency together with the medical justification for the Stat-surgery should be recorded by the surgeon. Because of the exigencies of such a situation, such documentation is usually included in the postoperative surgical report. It would be inappropriate for a physician to require a nurse to do such documentation, A nurse could refuse to carry out such a secretarial order. However, even though a nurse may be in disagreement regarding the presence of an emergency serious enough in nature to warrant Stat surgery, he or she cannot legally refuse to scrub or circulate on such occasions. The nurse's failure to provide nursing assistance to the surgeon in this situation could be labeled abandonment of his or her responsibility as a professional registered nurse. It could result not only in a malpractice lawsuit but in serious disciplinary action against him or her by the board of nursing registrqation and licensure.
Q
In my hospital, if a surgeon glances at a consent form just before beginning an operation and decides it is not adequately descriptive of the planned surgery, he may delay the procedure. He may ask to have the patient sign a new consent form. Because such a patient is usually premedicated (eg, 50 mg meperidine hydrochloride, 50 mg hydroxyzine hydrochloride, 0.4 mg atropine), we wait ten minutes before asking the patient to sign the new form. Is this sufficient time from a legal point of view? If not, how should we handle such a situation, legally speaking?
A
It is the prerogative of the cautious surgeon to declare a delay in a proposed operative procedure until he is satisfied that the consent form adequately reflects the agreement he reached with the patient regarding the nature, scope, and risks of the operation. However, the new consent form would have no legal validity unless it could later be demonstrated that the patient was alert, conscious, knew where he was, and understood the language and meaning of the new consent form. It is hard to visualize this state of consciousness ten minutes after the type of premedication described. As a practical matter, the surgeon who has delayed the operative procedure should examine the patient prior to the execution of the new consent form to determine if the patient is conscious, alert, and capable of giving an informed, voluntary consent. When it is not convenient for the physician to conduct such as examination, he should request information regarding the patient's vital signs, consciousness, and awareness of surroundings from a nurse who is observing the patient. The nurse's notes relative to the execution of the second consent form should include reference to the fact that the patient was observed and determined to be conscious and capable of signing the second consent form by the surgeon or by someone assigned for that purpose by the surgeon.
William A Regan, JD Managing partner Regan, Carberry, and Flynn Providence, RI
If you have questions on OR nursing law you would like answered, please send them to William A Regan, JD, clo AORN Journal, 10 1 70 E MississippiAve, Denver, Colo 8023 1. Questions of general interest will be selected for replies in this column. Other questions will not be answered. Questions will not be acknowledged or returned.
AORN Journal, July 1978, V o l 2 8 , No 1
87
