Informed Consents: A Case Study

There have been concerns raised surrounding informed consents obtained during the hospitalization of James Roberts. Consents must be obtained from the patient or person authorized to consent on the patient’s behalf (Pozgar, 2016, p. 326). The following is a review of the surgical consents obtained during the recent admission. The initial consent for decompressive craniectomy was an implied consent. “If it is impossible, in an emergency, to obtain consent of the patient or someone legally authorized to give consent, the required procedure may be undertaken without liability for failure to procure consent “(Pozgar, 2016, p. 327). Mr. Roberts was incapacitated by his injury and the family could not be located for another two days. Documentation of the emergent situation and the immediate threat to life or health would be the primary requirement to
justify proceeding with the procedure (Pozgar, 2016, p 327). This consent was appropriate. The second consent was verbal from the next of kin.
Verbal consents are sufficient if they contain the information required by statute, the patient was given an opportunity to ask questions, and those questions were answered (Pozgar, 2016, p. 326). When there is no legal guardian and a physician doubts the capacity of a patient to consent, the consent of the next of kin should be obtained (Pozgar, 2016, p. 338). This does not require the patient be judged legally incompetent. Mary, a daughter, was the only know relative. The concern surrounding this consent is who ultimately obtained the consent. Under common law the surgeon always holds full responsibility for giving the information needed to obtain informed consent (Buppert, 2016). In the Buppert article she goes on to say, “it makes no sense for a hospital to take on a duty that is clearly the surgeon’s responsibility. The surgeon would not know the specifics discussed, any surgical limitations or the adequacy of the response to questions. The consent should have been obtained by the provider performing the procedure. This consent may not have been
appropriate. The most concerning consent was one obtained for replace of the bone flap. From the description, Mr. Roberts did not appear to have the capacity for decision making. The description also supports recognition of this by the physician. The existence of a surrogate decision maker was known from the previous surgical procedure. Give Mr. Roberts’ lack of capacity, the daughter should have been the decision maker. This consent was not appropriate. Consent is the voluntary agreement by a person who possesses sufficient mental capacity to make an intelligent choice (Pozgar, 2016, p. 325). The use of a consent form, signed by Mr. Roberts at that time of this surgery, would not meet the definition of informed consent. This could be a tort risk. The ultimate poor outcome of the procedure may also be a risk for an action for negligence. An acquaintance of Mr. Roberts has now claimed consents were not appropriately obtained. This individual also claims to be the power of attorney for health care and to also claims the patient has advanced directives. These claims come after 10 days of hospitalization and three surgical procedures. The hospital would have no way of knowing of the existence any of these documents until they are presented by a responsible party. The initial admission procedure was appropriately handled. If the second procedure were to result in a negligence claim, the hospital may be liable because the consent was obtained by nurse employed by the hospital. The third procedure may be a tort risk due to a lack of informed consent by the surgeon. If the cause of Mr. Roberts deterioration can be linked to the technically appropriate procedure, there is also a potential for a negligence claim.