EMAIL TO A FRIEND COMMENT

 

Signed Surgical Consent Form Protects Residency Program From Battery, Fraud


A woman was a patient at a clinic. The woman was notified at least three times that the clinic was a residency program and that residents were medical doctors who had graduated from medical school and were receiving specialty training in the field of women's health, staff doctors oversaw the care provided by the resident doctor, every case was discussed with a staff doctor, and the staff doctor may have seen or examined the patient as well.

 

A resident examined the woman at the clinic. Four months later, this resident and another doctor operated on the woman, and the surgical findings indicated she had an increased risk of developing cervical cancer. The woman was advised of several options, and she decided to undergo a hysterectomy.

 

At the hospital on the day of the hysterectomy the woman signed a consent form. The form was explicit that the woman was consenting to the presence and participation of other people in addition to the resident.

 

The resident who had previously operated on the woman performed most of the surgery. This resident was present in the operating room during all of the surgery. Another resident performed the hysterectomy on one side of the woman's body but did not participate in the operation on the other side, or in the opening or closing procedures. A doctor supervised both residents. He was present for and assisted in the entire procedure. About six days later, the woman was readmitted to the hospital. Four days after her admission, the woman underwent further surgery because of wound drainage and swelling.

 

The woman sued the residents, the supervising doctor, the hospital, and the clinic for medical malpractice. The complaint alleged that the failure of the supervising doctor to obtain any consent at all before performing surgery was a battery; the hospital and each of the doctors had a duty to obtain her informed consent for the surgery, including disclosure of the identities and qualifications of all physicians involved in performing the procedure and the fact that the residents were still in training; and the residents and supervising doctor were liable for actual or constructive fraud or deceit because the second resident entered the operating room, performed surgery, and left while the woman was unconscious, intentionally depriving her of the opportunity to be advised of or object to the second resident performing surgery on her, and the other two doctors knowingly allowed the second resident to do so and they did not tell the woman in advance that the second resident would be performing part of the surgery.

 

The Marion Superior Court granted the healthcare providers’ motion for summary judgment.

 

The Court of Appeals of Indiana affirmed. The court held that the battery and informed consent claims failed because the woman consented to the participation of the second resident and others in her surgery when she signed the consent form, and the trial court did not err in granting summary judgment in favor of the healthcare providers with regard to the constructive fraud and deceit claim,

 

The battery and informed consent claims failed because the woman consented to the participation of the second resident and others in her surgery when she signed the consent form. The consent form was not a contract of adhesion. The woman presented no evidence she did not read or understand the form she signed. The court held that the woman's consent to allow assistants as selected by the first resident to perform the total abdominal hysterectomy and the participation of medical, nursing, other health care students, residents, and interns in the procedure being performed on her was not an agreement that no sensible person not under delusion, duress, or in distress would make, and such as no honest and fair person would accept. When the woman explicitly authorized the first resident and assistants as selected by the first resident to perform the total abdominal hysterectomy and consented to the participation of medical, nursing, other health care students, residents, and interns in the procedure being performed on her she consented to the second resident performing any part of her surgery.

 

The trial court did not err in granting summary judgment in favor of the healthcare providers with regard to the constructive fraud and deceit claim. The court found that the evidence did not demonstrate the healthcare providers made deceptive material misrepresentations of past or existing facts, nor was there evidence suggesting they remained silent when a duty to speak existed. The woman knew the facility where her procedure would be performed was a teaching institution, and that students, nurses, and allied health personnel might assist in providing care. She signed a consent form that included a statement that she agreed medical students could assist in providing her care.

 

The Court of Appeals of Indiana affirmed the trial court’s grant of summary judgment in favor of the healthcare providers.

 

See: Tipton v. Isaacs, 2014 WL 4384102 (Ind.App., September 5, 2014) (not designated for publication).

 

See also Medical Law Perspectives, January 2012 Report: Hospital-Acquired Infections: Who Is Liable and Why?

 

 

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