Continuing developments in informed consent

AORN Journal, Oct, 2000 by Ellen K. Murphy

The Alabama Supreme Court recently joined appellate courts in at least 22 other states (ie, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Louisiana, Michigan, Missouri, Nebraska, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Texas, Washington, West Virginia, Wisconsin) in holding that neither nurses nor hospitals have an independent duty to obtain a patient's informed consent to perform a surgical procedure. This means that almost half of the states have addressed this specific question in an appellate court case, and all of those that have done so decided that the duty to obtain a patient's informed consent rests solely with the patient's physician and not with nurses or their employers.

ADMITTING AND DELIVERY NURSES NOT LIABLE

The facts of the Alabama case, Wells v Storey (#1970450 Alabama Supreme Court) are as follows. On Sept 19, 1994, the plaintiff was admitted to the hospital in the early stages of labor. She signed the authorization for procedure form provided to her by the admitting nurse. According to the nurse, the form had the words "vaginal delivery" and "epidural anesthetic" stamped onto it before the plaintiff signed. According to the plaintiff, there was nothing stamped in the procedure blanks on the preprinted form when she signed it.

By 6 AM, Sept 20, the resident physician determined the plaintiff was in active labor and sent her to the delivery room. The delivery room nurse notified the anesthesiologist that the patient was requesting an epidural anesthetic, although the plaintiff denies she made that request. The anesthesiologist administered the epidural anesthetic, rotated off call, and left the hospital. The delivery room nurse, the resident, and the attending physician assisted as the plaintiff delivered a healthy baby boy. On the afternoon of Sept 22, the resident discharged the plaintiff after a post-delivery checkup that included examination of the spine where the epidural had been injected.

Two days later, the plaintiff returned to the hospital complaining of pain, numbness, and tingling in her right leg and back pain. Her temperature was 99.8 [degrees] F (37.7 [degrees] C). The emergency room physician noted that the plaintiff had a history of lumbar disc rupture. He diagnosed "lumbar radiculopathy, s/p epidural block, and morbid obesity" and discharged her without treatment. The discharge instructions were bed rest, gentle heat, and weight loss.

The next day, she again returned--this time by ambulance--with severe back pain and paralysis. The neurologist who examined her found and drained an epidural abscess from the lumbar region. He later testified that hemorrhage from placement of the epidural catheter was the most likely cause of the abscess. The plaintiff's nerve damage from the abscess was irrevocable, and she was paralyzed permanently from the waist down. She sued each of her physicians, alleging their failure to meet the medical standard of care. She also sued the hospital and both nurses, alleging that they had a duty (in addition to the duty of the anesthesiologist) to obtain her informed consent for the epidural anesthetic. The plaintiff testified that neither the admitting nurse, who gave her the form to sign, nor the delivery room nurse, who contacted the anesthesiologist and cared for her during the placement of the epidural and the delivery, had explained the risks associated with the epidural anesthetic. She claimed that if she had been informed of the risks of the epidural, she would not have consented, and if she had not had the epidural, the ensuing abscess could not have caused the paralysis. The trial court entered a summary judgment in favor of the hospital and the nurses. This means that even if the plaintiff's allegations about the blank preprinted authorization form and neither nurse explaining the risks of epidural anesthesia were true, the nurses could not be found liable because the court refused to create a duty on the part of the nurses related to the patient's informed consent.

The Alabama Supreme Court agreed with the trial court judge that the duty to inform the patient of the risks, benefits, and alternatives to a medical or surgical procedure rests with the physician performing the procedure and only that physician. In this case, only the claim against the anesthesiologist could proceed on an informed consent theory.

The Alabama Court referenced the rationale for its holding from a 1992 New Mexico court. That court had implied that even when a nurse performs a procedure for which he or she has been trained, knowing how to perform the procedure is not sufficient to know what information to disclose to the patient because that requires knowing a particular patient's medical history, diagnosis, or other unique circumstances (Johnson v Sears, 113 NM 736, 832 P2d 797 [1992]). The court also quoted a Colorado case, Krane v St Anthony (738 P 2d 75, 77 [Colo App 1987]) that said,

   The reason for imposing this duty on the physician is to protect the
   patient's right to be informed of the risks of surgery prior to giving his
   consent ... a hospital [or its employee nurses] does not generally have a
   duty to advise the patient prior to surgery as to the surgical procedures
   to be employed and the risks involved and, therefore, has no duty to obtain
   an informed consent similar to that which the surgeon is obligated to
   obtain.