Withdrawing consent after a procedure has begun - OR Nursing Law

AORN Journal, July, 2003 by Ellen K. Murphy

Every perioperative nurse knows that patients have a legal right to be informed of the risks and benefits of and alternatives to an invasive procedure, and they must give consent before a procedure can be performed. Every perioperative nurse also knows that patients have a legal right to withdraw that consent at any time before the procedure, but can a patient withdraw consent after a procedure has begun? Case law is just developing in this area, but at least two states' supreme courts and one appellate court have examined this issue and are in agreement--patients have a legal right to withdraw consent even after a procedure has begun as long as medically viable options remain.

WISCONSIN CASE

The Wisconsin Supreme Court addressed this question directly in Schreiber v Physician's Insurance (223 Wis2d 417, 588 NW2d 26 [Wis 1999]). This case involved a patient who withdrew consent for vaginal delivery during labor. For her two previous deliveries in 1981 and 1984, she had undergone cesarean sections. By the time of her third pregnancy in 1987, prevailing research suggested that having a vaginal birth after cesarean section (VBAC) was no more dangerous than having another C-section and that VBAC could present less risk to mother and child. The patient's obstetrician recommended attempting VBAC, and she agreed. The obstetrician testified he understood her decision to be decisive and that she planned to deliver vaginally unless a C-section was warranted medically.

The patient was admitted to the hospital in labor at approximately 4 AM and signed consent forms for both VBAC and C-section. The obstetrician first visited her at 8 AM, and the patient told him she wished to abandon her plan for VBAC and undergo another C-section. The obstetrician urged her to continue with VBAC. At 8:30 AM, the obstetrician manually broke the patient's amniotic fluid sac in an effort to speed up labor. Later that morning, the patient began experiencing excruciating abdominal pain unlike any she had experienced previously. Nurses unsuccessfully attempted to manage the pain with medication, and the patient again asked for a C-section.

The obstetrician next checked the patient at 1 PM and concluded the pain did not signal danger to either mother or child. The patient again requested a C-section. The obstetrician instructed her to give VBAC more time. The patient protested, again complained of pain, and again requested a C-section. The obstetrician responded that if he performed a C-section on every woman who wanted one, all deliveries would be by C-section.

The patient said she was intimidated and upset by this comment and did not request a C-section again. At 3:40 PM, the fetal heart tones dropped. The obstetrician was summoned and performed a C-section just after 4 PM. The patient had suffered a ruptured uterus, and the baby was born anoxic. The child remains a spastic quadriplegic and cannot speak. Both parents sued, alleging the obstetrician was negligent in misdiagnosing the patient's abdominal pain and violated her informed consent rights.

The Wisconsin Supreme Court began its analysis on a cautionary note. It stated that, in the court's opinion, nothing should be interpreted to create a patient's right to demand any treatment he or she desires nor should anything require physicians to perform procedures they do not consider to be medically indicated or those for which they lack expertise. In other words, although the opinion holds that patients do have a right to consent and withdraw consent, they cannot demand or dictate what treatment they receive.

The court stated that there was no question about the adequacy of the consent process before the onset of labor in this case. Rather, the question was whether consent could be withdrawn at this stage of the procedure (ie, after labor had begun and while VBAC was being attempted).

The trial court judge held that after labor had begun, the patient could not change her decision unless there was a substantial change in medical circumstances. The Wisconsin Supreme Court rejected

   the notion that the onset
   of a procedure categorically
   forecloses a patient's
   withdrawal of consent. To
   be sure, at some point in
   virtually every medical
   procedure a patient reaches
   a point from which
   there is no return.
   However, that point need
   not be arbitrarily created
   at the commencement of
   treatment. Rather, it
   varies with the nature and
   circumstances of the individual
   procedure and continues
   so long as there
   exist alternative viable
   modes of medical treatment
   (Id at 31).

As a result of this decision, patients in Wisconsin have the legal right to withdraw consent after a procedure has begun as long as viable alternative modes of medical treatment exist. The court ruled that whenever there is a change in medical or legal circumstances (eg, consent has been withdrawn), a new informed consent discussion to readvise patients of available treatment options and their risks must take place. To decide otherwise would allow a solitary informed consent discussion to provide blanket consent for any and all subsequent treatment.