Understanding Informed Consent in Orthopedic Cases

Informed consent is the cornerstone of patient autonomy and ethical medical practice, particularly in orthopedic surgery, where procedures are often elective and involve significant risks. Legal nurse consultants and attorneys examining malpractice cases in this area must have a solid grasp of how informed consent is obtained and documented, as well as the nursing role in this process.

As a nurse with experience in orthopedics (in the operating room and medical-surgical care), I’ve seen how informed consent can become a pivotal issue in legal cases. Below, I’ll outline critical points for legal professionals and LNCs to consider when evaluating informed consent in the orthopedic setting.

1. The Legal Standard of Informed Consent

Informed consent isn’t just a patient’s signature on a form, it’s a process. It requires the following components:

• Disclosure: The surgeon must provide comprehensive information about the procedure, including risks, benefits, alternatives, and potential complications.

• Comprehension: The patient must fully understand the information provided.

• Voluntariness: The decision must be made freely, without coercion.

• Competence: The patient must have the capacity to make the decision.

LNCs and attorneys should evaluate whether all these components were addressed and documented.

2. The Role of the Nurse in Informed Consent

Although nurses do not obtain informed consent for surgical procedures, they play a crucial supporting role that can become central to a case:

• Ensuring the Consent Form is Signed: Nurses are often tasked with verifying that the patient has signed the informed consent form. (Making sure the anesthesia and surgical consent has all the essential signatures, ensuring they were witnessed and ensuring it is the correct procedure and type of anesthesia that the patient agreed on)

• Patient Advocacy: If a patient expresses uncertainty or seems to lack understanding of the procedure, the nurse should advocate for them by notifying the surgeon or other members of the healthcare team.

• Documentation: Nurses should document any patient concerns, questions, or instances where they needed to intervene or clarify information.

3. Red Flags to Watch for in Legal Cases

When reviewing medical records related to informed consent in orthopedic cases, consider the following:

Inadequate Documentation

• Was the consent form signed on the day of surgery, or was it done well in advance?

  • What Attorneys Should Look For:

    • When was the consent obtained in relation to the surgery?

    • Was there adequate time for the patient to process the information and ask questions?

    • Was the consent form signed after the patient received sedatives like benzodiazepines?

• Does the consent form outline procedure-specific risks (e.g., nerve damage in total joint replacement or compartment syndrome in fracture surgeries)?

  • What Attorneys Should Look For:

    • Did the surgeon specify risks associated with the particular procedure?

    • Were alternative treatments, like physical therapy or less invasive options, documented?

    • Is there a record of the patient’s questions or concerns, and were these addressed by the surgeon?

      
      

Signs of Patient Misunderstanding

• Patients often misunderstand medical jargon or fail to grasp the full implications of their surgery. Nurses are frequently the ones who identify confusion or hesitation and escalate these concerns.

  • What Attorneys Should Look For:

    • Is there documentation of the patient asking questions?

    • Did the surgeon address patient concerns, or did the nurse note unresolved questions?

    • Was there evidence that the patient understood the risks, benefits, and alternatives? (e.g., documented patient quotes or verbal affirmations).

      
      

Special Populations

• Nursing/Physician Insight: Every patient brings unique challenges, whether due to age, language barriers, cognitive impairments, or comorbidities. The informed consent process must accommodate these factors.

  • What Attorneys Should Look For:

    • Language Barriers: Was an interpreter present? Was the consent form translated into the patient’s preferred language?

    • Cognitive Impairment: Was the patient deemed competent to sign, or was a legal guardian involved?

    • Preexisting Conditions: Were risks related to comorbidities (e.g., diabetes, which increases infection risk) explicitly discussed?

      
      

Emergency Situations and Consent Waivers

• Nursing/Physician Insight: In emergencies, consent may be obtained under less-than-ideal circumstances. However, the medical team must document why deviations from standard consent practices occurred.

  • What Attorneys Should Look For:

    • Was the consent marked as “emergency”?

    • Did the documentation explain why a full consent process wasn’t feasible?

    • Were follow-up conversations with the patient or family held post-procedure?

4. Case Studies: Real-World Implications

Legal nurse consultants and attorneys can build compelling cases by identifying gaps in informed consent processes. For instance:

• Case 1: A Total Knee Replacement Gone Wrong: The patient experienced severe nerve damage and claimed they were never informed of this risk. A review of the records showed no documentation of specific risks discussed.

• Case 2: Language Barriers in a Spinal Surgery: A Spanish-speaking patient signed a consent form written in English without an interpreter present. The lawsuit hinged on inadequate communication.

  
  

5. Best Practices for Nursing and Legal Professionals

For nurses, the focus should be on clear, detailed documentation and acting as a patient advocate. For LNCs and attorneys, the goal is to identify deviations from the standard of care, which include:

• Missing or vague documentation of risks and alternatives.

• Failure to involve appropriate support for patients with disabilities or language barriers.

• Evidence of rushed or incomplete consent processes, especially in emergency orthopedic surgeries.

  
  

Summary

Informed consent is more than a legal formality, it’s a collaborative process requiring clear communication, detailed documentation, and patient-centered care. For attorneys, overlooked aspects of consent can uncover critical weaknesses in defense or establish negligence in a malpractice case.

As a legal nurse consultant, I can assist in identifying these red flags and bridging the gap between clinical documentation and legal strategy. Contact me at Joint Effort Legal Nurse Consulting for case reviews or consultations and share your thoughts.

-Alexandria Anthony, BSN, RN, CNOR, LNC