Legal Aspects Of Health Care Administration 11th Edition by George Pozgar

Exercise 6

Facts
Mathias, a patient of Dr. Witt's at St. Catherine's Hospital, delivered a full-term son by cesarean section on February 2, 1993, while she was under general anesthesia. In the operating room, Witt indicated that he needed a particular instrument that would be used in a tubal ligation. The nurses, Ms. Snyder and Ms. Perri, employees of St. Catherine's, looked at Mathias's chart. Snyder informed Witt that she did not see a signed consent form for that procedure. In deposition testimony, Snyder stated that Witt replied, "Oh, okay."
Witt performed a tubal ligation. Three days after the procedure had been done, a nurse brought Mathias a consent form for the procedure. This nurse told Mathias that the form was "just to close up our records." The nurse testified in her deposition that she signed Perri's name on that same consent form and backdated it to February 2, the day the surgery was performed. As the trial court noted in its oral decision granting summary judgment, these actions after the surgery are immaterial to the issue of the hospital's duty to Mathias. The trial court granted summary judgment dismissing St. Catherine's from the malpractice action. Mr. and Ms. Mathias appealed the summary judgment contending that the hospital owed a duty to Mathias to prevent her physician from performing a tubal ligation for which there was no signed consent.
Issue
Did the hospital owe a duty to Mathias to prevent her physician from performing a tubal ligation for which there was no consent? Did the trial court err in granting summary judgment to St. Catherine's?
Holding
St. Catherine's fulfilled its duty of ordinary care to Mathias and therefore is not liable. The trial court's grant of summary judgment was affirmed.
Reason
The duty to advise a patient of the risks of treatment lies with the physician and not the hospital. This duty is codified in Wisconsin Statute § 448.30, which requires the following:
Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physician's duty to inform the patient under this section does not require disclosure of:
1. information beyond what a reasonably wellqualified physician in a similar medical classification would know
2. detailed technical information that in all probability a patient would not understand
3. risks apparent or known to the patient
4. extremely remote possibilities that might falsely or detrimentally alarm the patient
5. information in emergencies where failure to provide treatment would be more harmful to the patient than treatment
6. information in cases where the patient is incapable of consenting
This statute is the cornerstone of the hospital's duty in this case. The court noted that the legislature limited the application of the duty to obtain informed consent to the treating physician. Although the record is littered with semantic arguments about whether this is a case of nonconsent or lack of informed consent, what the Mathiases sought was to extend the duty of ensuring informed consent to the hospital.
The duty to inform rests with the physician and requires the exercise of delicate medical judgment. It is the physician-not the hospital-who has the duty of obtaining informed consent. The surgeon, not the hospital, has the education, training, and experience necessary to advise each patient of risks associated with a proposed procedure. The physician is in the best position to know the patient's medical history and to evaluate and explain the risks of a particular operation in light of the particular medical history.
What issues do you see in another nurse's decision to sign Perri's name on the consent form and then backdate it to February 2, 1993?