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Should Hospitals be Responsible for Informed Consent?

Published online by Cambridge University Press:  27 April 2021

Jane Greenlaw
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Extract

Does a hospital bear a responsibility independent of that of the attending physician to ascertain that a patient has given an informed consent? Until recently, state appellate courts have provided a decidedly negative answer to this question. However, in Magana v. Elie, an Illinois appellate court recently adopted a different position, opening the door to a new area of hospital responsibility and, therefore, increased potential liability for hospitals. This column provides a brief review of the informed consent doctrine, discusses the traditional and the Magana approaches to the issue of hospitals‘ responsibility to obtain informed consent, and analyzes the implications, particularly for nurses, should the Magana approach be more widely followed.

Type
NLE Rounds
Information
Law, Medicine and Healthcare , Volume 11 , Issue 4 , September 1983 , pp. 173 - 187
Copyright
Copyright © American Society of Law, Medicine and Ethics 1983

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References

It would be misleading to suggest that hospitals have never been successfully sued for the independent physicians’ failure to obtain informed consent. Such judgments have been instated against, and paid by, the hospitals. In a leading informed consent case, the court stated: “The action was consolidated for trial with a similar action against the hospital. The jury returned a general verdict against the hospital in the amount of $45,000. This judgment has been satisfied.” Cobbs v. Grant, 502 P.2d 1, 5 (Cal. 1972). The judgment against the hospital was not appealed.Google Scholar
439 N.E.2d 1319 (Ill. App. 1982) [hereinafter referred to as Magana].Google Scholar
Annas, G.J. Glantz, L.H. Katz, B.F., The Rights of Doctors, Nurses, and Allied Health Professionals (Avon Books, New York) (1981) at 72 [hereinafter referred to as Rights].Google Scholar
Id. at 73, citing Cobbs v. Grant, supra note 1, at 9.Google Scholar
Battery is defined as “the unlawful application of force to the person of another….” Black's Law Dictionary (rev. 5th ed. 1979) at 139.Google Scholar
Some jurisdictions measure the physician's disclosures against the standard disclosure that “a reasonable physician would make under the same or similar circumstances.” The trend is away from this standard toward that of disclosures that “a reasonable patient would regard as material to his decision.” Rights, supra note 3, at 73-74.Google Scholar
See, e.g., Harnish v. Children's Hosp. Medical Ctr., 439 N.E.2d 240 (Mass. 1982) (plaintiff who suffered an undisclosed inherent risk of surgery alleged, but was unsuccessful in proving, that surgeons were employees of hospital).Google Scholar
For a discussion of the nurse's role in obtaining informed consent generally, see Holder, A.R. Lewis, J.W., Informed Consent and the Nurse, Nursing Law & Ethics 2(2): 1 (February 1981). Tangentially, hospital records are required by JCAH standards to contain evidence of an appropriate informed consent. Joint Commission on the Accreditation of Hospitals, Accreditation Manual for Hospitals, 1983 Edition (JCAH, Chicago) (1982) at 84-85.Google Scholar
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588 S.W. 2d 134 (Mo. 1979).Google Scholar
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294 S.E. 2d 446 (W. Va. 1982).Google Scholar
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211 N.E.2d 253 (Ill. 1965), cert. denied, 383 U.S. 946 (1966) [hereinafter referred to as Darling].Google Scholar
Magana, supra note 2, at 1322, quoting Darling, 211 N.E.2d at 257 (citations omitted).Google Scholar
Magana, supra note 2, at 1322 (citation omitted).Google Scholar
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See, e.g., Lewis, Holder, supra note 8.Google Scholar