Legal Review & Commentary-Patient's informed consent rights violated
News: The Wisconsin Supreme Court has ruled that a physician violated a laboring patient's informed consent rights when he continued to insist on a vaginal birth after cesarean (VBAC) delivery even though the patient repeatedly told him she had changed her mind and wanted a cesarean. The baby was seriously injured in the incident.
Background: In 1987, the patient was admitted to the hospital at 4:00 a.m. for the delivery of her third child. Her obstetrician had delivered her two other children by cesarean section, in 1981 and in 1984. The second cesarean was done based on the prevailing "once a cesarean always a cesarean" practice at that time. During the third pregnancy, the obstetrician and the patient had discussed having a vaginal birth after cesarean as well as the cesarean, and the obstetrician recommended trying the VBAC. The patient agreed.
As part of the hospital's admissions process, the patient signed consent forms for both a VBAC and a cesarean section. At 8 a.m., the patient told the obstetrician that she had changed her mind and wanted another cesarean. The obstetrician urged her to continue with the VBAC. About thirty minutes later, the physician broke the patient's amniotic fluid sac to try and speed up the labor.
An emergency cesarean performed
According to court documents, the patient began suffering "excruciating abdominal pains sharply different from her contractions and unlike anything she had experienced with her prior deliveries." The patient sent her husband to ask the nurse to inform the obstetrician again that she wanted a cesarean.
The obstetrician checked on the patient again at 1 p.m. He was unable to diagnose the source of the abdominal pains but determined that they did not put the patient or baby at risk. Again the patient requested a cesarean, but the obstetrician told her to be patient. He said that "if he performed a cesarean delivery on every woman who wanted one, that all deliveries would be by cesarean section."
At 3:40 p.m. the baby's heart rate dropped. The obstetrician performed an emergency cesarean section at 4 p.m., but the patient's uterus had ruptured, which deprived the child of oxygen. The child was born a spastic quadriplegic and cannot move below her neck, or speak. It was agreed that if the child had been delivered before 3:29 p.m., she would have been born healthy.
The parents sued the obstetrician and his insurance carrier, alleging that the doctor violated the patient's informed consent rights and committed malpractice when he misdiagnosed her abdominal pains. Before trial, the parents dropped the malpractice claim. The trial judge ruled for the defense on the informed consent claim. The Wisconsin Supreme Court sided with the parents. The court determined that the patient withdrew her consent to a VBAC during labor, requiring the doctor to hold a new informed consent discussion with her. The court remanded the case to the trial court to determine damages.
What it means to you: Wanda L. Hurr, RN, JD, an attorney with Michael Best & Friedrich LLP, Milwaukee, WI, offers this advice:
Most lawyers believe this case to be an aberration. However, it does have strong implications and serves as a reminder to risk managers and attorneys alike of the continued viability of the informed consent doctrine. Ultimately, the [Wisconsin] Supreme Court noted the sanctity of a patient's right to request and/or refuse medical treatment. The court said that the patient's repeated requests to cease the VBAC and perform a cesarean constituted a withdrawal of consent, removing the physician's authority to continue with the VBAC and obligating him to conduct another informed consent discussion.
While this case did not involve the hospital or its employees, it provides an opportunity to review the hospital employees' role in the informed consent process. Once a patient categorically withdraws consent for treatment, it is the obligation of the pertinent health care provider to conduct another informed consent discussion, which clearly gives a patient the opportunity for choice of treatment.
In most situations, the obligation to obtain informed consent for treatment lies primarily with the attending physician. However, it is also clear that most nurses and other hospital employees/ health care providers have roles to play in this process. In this case, for example, there was testimony that one of the nurses was sent to find the attending physician to inform him that the patient no longer wished to proceed with the VBAC delivery. In such circumstances, risk managers and hospital staff would be wise to recall the following:
• Documentation is an extremely important strategy. Any time a patient withdraws consent for treatment, nurses should document very clearly the circumstances of the withdrawal and the attempts made to notify the physician.
• Documentation of discussions with the physician is absolutely critical. Communication issues on the basis of litigation often present temptations for staff and physicians to point the finger at one another.
• Staff should be adequately trained in what steps to take when a physician insists on proceeding with a treatment for which the patient has clearly withdrawn consent. In that situation, staff should be instructed to notify their immediate supervisor and obtain assistance. If a patient has clearly withdrawn consent to treatment, employees who continue to provide such treatment, even if following the direct order of the patient's attending physician, risk being sued. Indeed, some nursing practice acts require separate informed consent from patients before nursing procedures can go forward. Such nursing procedures need not depend on a physician's order.
• Educational programs addressing informed consent should cover this case for physicians and staff. For instance, the patient in that case never said the magic words, "I revoke," the court noted. But her repeated statements clearly indicated her withdrawal of consent, the court found. Staff members would be wise to address various scenarios, using role-playing and videotapes as training tools.
• Withdrawal of consent should be properly addressed in informed consent policies.
The court pointed out that the case does not alter the principles of informed consent. Rather, it "more fully articulates those principles by applying the doctrine in a factual context . . . not previously faced." As such, at least one state supreme court has refused to let health care providers "off the hook" simply because of uncharted territory or unusual circumstances. The decision should prompt risk managers to revisit policies, procedures, and informal staff responses to informed consent dilemmas.
Reference
Schreiber v. Physicians Insurance Company of Wisconsin (223 Wis.2d 417, 588 N.W.2d 26) (1999).
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