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Brent's Law

Nancy J. Brent, RN, MS, JD received her Juris Doctor from Loyola University Chicago School of Law and concentrates her own solo law practice in health law and legal representation, consultation, and education for health care professionals, school of nursing faculty, and health care delivery facilities.

Brent has conducted many seminars on legal issues in nursing and health care delivery across the country and has published extensively in the area of law and nursing practice.


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What are the legal issues surrounding getting consent for surgical procedures?
Friday November 14, 2008
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Question:

Dear Nancy,

What are the legal issues surrounding getting consent for surgical procedures, as it relates to pre-op/ED/med-surg obtaining consent, as opposed to the actual OR circulator obtaining consent? There have been multiple occasions where OR nurses have been on-call and asked to obtain consent from the patient. I see it as a patient safety issue (e.g. correct site/side procedure) and feel that whomever is taking care of the patient just prior to transferring to the OR should obtain consent. That way, the OR nurse can verify that consent as a double check. Is this more of a policy or legal issue?

Denise



Nancy Brent replies:

Dear Denise,

The legal issues inherent in obtaining informed consent for, or informed refusal of, treatment, including surgical treatment, is well beyond the scope of this column. However, your submitted question is important and can be responded to generally.

There is no question that obtaining the informed consent of the patient for surgery is imperative, except, of course, in an emergency situation. Indeed, the Association of periOperative Registered Nurses (www.aorn.org) has a wealth of information on its Web site about patient safety, including informed consent for surgery.

One important document available on the association’s Web site is its link to the Centers for Medicare and Medicaid Services’ April 2007 Revisions to the Hospital Interpretative Guidelines for Informed Consent. Interpretive Guideline 482.51(b)(2) covers informed consent for surgery. (When you go to the association's website, click on Public Policy, then scroll down that page and click on the link to the Guidelines).

It is important to keep in mind that the practitioner who is doing the procedure — the surgery — will be involved in the process of informing the patient of the surgery that is to occur. Another healthcare provider can obtain the signature of the patient on the consent form if the primary practitioner does not obtain it during the informed consent process. However, as the Guideline requires, there should be a developed policy concerning all aspects of informed consent for surgery (e.g., who obtains it, what form is to be used, etc.), including the fact that unless there is an emergency, informed consent should be obtained prior to any surgical treatment. The policy then needs to be followed.

It makes sense legally and from a patient safety perspective that the more times a confirmation of the surgery to be done is obtained from the patient or his representative helps put the patient and his or her safety first. A policy that requires a confirmation of an initial consent and the procedure to be done several times at various points as the patient progresses to the perioperative suite can do much to alleviate potential error.

Cordially,
Nancy



Nancy J. Brent, RN, MS, JD, is an attorney in private practice in Wilmette, Ill. This information is for educational purposes only and is not intended as legal or any other advice. The reader is encouraged to seek the advice of an attorney or other professional when an opinion is needed.



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