The duty to obtain a patient's consent for treatment rests on the patient's treating physician (6). Hospitals, nurses, surgical assistants, and referring physicians do not owe this duty to their patients (7). The treating physician's duty to obtain a patient's informed consent cannot be delegated (8). The duty is not eliminated, lessened, or spread by having the hospital nurse secure the patient's consent before surgery (8).
Under 2 situations, however, Texas courts have left open the possibility that a hospital or nurse might also be exposed to liability for conduct in the informed consent process. The first possibility involves a circumstance in which the hospital or nurse agrees to undertake the treating physician's nondelegable duty (9). This action does not allow the physician to escape liability for failing to obtain the patient's consent (8). This situation only exposes the hospital or nurse to liability that would not otherwise exist.
Second, a nurse's failure to report a discrepancy between the patient's understanding of the surgery to be performed and the surgery listed on the patient's records may create liability (10). If expert testimony establishes that the nurse had a duty to notify the physician of such a discrepancy, a negligence claim exists against the nurse (11).
The duty to obtain a patient's consent for treatment rests on the patient's treating physician (6). Hospitals, nurses, surgical assistants, and referring physicians do not owe this duty to their patients (7). The treating physician's duty to obtain a patient's informed consent cannot be delegated (8). The duty is not eliminated, lessened, or spread by having the hospital nurse secure the patient's consent before surgery (8).Under 2 situations, however, Texas courts have left open the possibility that a hospital or nurse might also be exposed to liability for conduct in the informed consent process. The first possibility involves a circumstance in which the hospital or nurse agrees to undertake the treating physician's nondelegable duty (9). This action does not allow the physician to escape liability for failing to obtain the patient's consent (8). This situation only exposes the hospital or nurse to liability that would not otherwise exist.Second, a nurse's failure to report a discrepancy between the patient's understanding of the surgery to be performed and the surgery listed on the patient's records may create liability (10). If expert testimony establishes that the nurse had a duty to notify the physician of such a discrepancy, a negligence claim exists against the nurse (11).
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