Legal Eagle Eye Newsletter for the Nursing Profession(5)11 Nov 97

   Quick Summary: If a nurse explains the operation to the patient, and the patient is harmed because the nurse’s explanation falls short of the knowledge a nurse is expected to posses, the patient can sue the nurse for negligence.

   The physician has the duty to obtain a patient’s informed consent for surgery. This duty does not apply to a hospital, even if the surgeon uses one of the hospital’s operating rooms.

   A doctor’s nurse does not have the legal duty to obtain a patient’s informed consent for surgery.

   If a nurse assists in a procedure where informed consent has not been given, the physician, but not the nurse, can be found guilty of a civil battery.

   A civil battery is intentional unauthorized and injurious touching of another person. Since a nurse has no legal duty to obtain informed consent, a nurse assisting in an unauthorized procedure lacks the legal intent to commit a battery. UNITED STATES DISTRICT COURT, PENNSYLVANIA, 1997.

   The doctor’s nurse conducted a pre-surgical interview with the patient in which the nurse described a video hysteroscopy, dilation and curettage, resectoscopic removal of submucous fibroids, laparoscopy and laser myomectomy.

   The physician had diagnosed a fibroid uterus and indicated he would do a dilation and curettage. He suggested a laparoscopy and hysteroscopy to rule out cancer. However, without obtaining the patient’s consent prior to surgery or waking the patient from anesthesia during surgery, the physician went ahead with a hysterectomy. The patient sued the physician, the hospital and the physician’s nurse.

   The hospital and the nurse asked the U.S. District Court for the Eastern District of Pennsylvania for a pre-trial ruling to define their legal responsibilities.

   The court ruled the hospital is not the party which has the legal responsibility to obtain a patient’s informed consent for a medical procedure, even if the physician is to use the hospital’s operating room.

   In this case it was a doctor’s nurse, not a hospital staff nurse, whose alleged failure to obtain the patient’s informed consent came under scrutiny, but that did not change the result. A nurse does not have the legal responsibility to obtain the patient’s informed consent, the court said.

   The court also ruled that if a surgeon goes ahead with a procedure to which the patient has not consented, a nurse assisting the surgeon is not liable for a civil battery, because it was not the nurse’s job in the first place to obtain informed consent.

   However, a nurse can be liable for professional negligence if a patient is harmed because a nurse’s explanation to a patient of a surgical procedure falls short of the knowledge a nurse is expected to have. Davis vs. Hoffman, 972 F. Supp. 308 (E.D. Pa., 1997).