Legal Issues Surrounding Consent for Treatment (Continued)

November 19, 2010, 9:15 AM

Strong evidence of fully informed consent is the best defense against both types of consent claims. Medicare and the Joint Commission require hospitals to maintain consent forms containing certain information. Become familiar with your hospitals consent forms, policies/procedures, by-laws and rules/regulations, as the hospitals established process provides a valuable framework. Although the hospital staff plays an important role in obtaining the signed consent form(s), the primary liability for lack of informed consent and battery lies with the physician, who knows the appropriate risks and alternatives to disclose and provides the treatment.

The signed hospital consent form is merely one piece of evidence and does not offer complete protection from liability. Further evidence of the information provided to the patient can be very helpful. For example, describe your conversation(s) with the patient in detail in an office note or hospital progress note. Have the patient sign that he/she received a brochure or watched a video, or at least note that you provided these educational materials and keep a copy of the brochures and videos in use at the time. Also remember that no consent form or documentation can prevent a claim for negligence that caused a complication, even if the complication was disclosed as a risk.

There are special legal requirements for consent in certain circumstances. For example, in the case of an adult patient incapable of making an informed decision who has not appointed an agent in an advance directive, the Virginia Code sets out the correct alternative decision maker. A parent normally provides consent for treatment of a minor, but the Code provides that minors are considered adults for purposes of consenting to treatment for, among other issues, pregnancy and substance abuse. There are special statutory provisions for consent to particular procedures, such as those involving sexual sterilization. --Jason R. Davis