Should Hospitals be Responsible for Informed Consent?

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.

439 N.E.2d 1319 (Ill. App. 1982) [hereinafter referred to as Magana].

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].

Id. at 73, citing Cobbs v. Grant, supra note 1, at 9.

Battery is defined as “the unlawful application of force to the person of another….” Black's Law Dictionary (rev. 5th ed. 1979) at 139.

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.

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).

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.

See comments, supra note 1.

588 S.W. 2d 134 (Mo. 1979).

Id. at 137.

294 S.E. 2d 446 (W. Va. 1982).

Id. at 449.

Id. at 451.

Id. at 459.

Id.

Id.

Magana, supra note 2.

Id. at 1320.

Id.

Id. at 1321-22.

211 N.E.2d 253 (Ill. 1965), cert. denied, 383 U.S. 946 (1966) [hereinafter referred to as Darling].

Magana, supra note 2, at 1322, quoting Darling, 211 N.E.2d at 257 (citations omitted).

Magana, supra note 2, at 1322 (citation omitted).

Id.

Id.

Darling, 211 N.E.2d at 258.

See, e.g., Lewis Holder , supra note 8.