patient consent

April 6, 2023

Posted on by Courtney Patterson

QUESTION:
Our hospital is considering adopting a standard, universal consent form for patients, or their representatives, to review and sign upon admission to our intensive care unit. This form will include a list of several commonly performed invasive procedures on the unit.  What are the benefits and potential problems with universal consent?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
This is an interesting question.  Universal, or “bundled,” consent can be an efficient means to obtain permission to perform common procedures in the intensive care unit ahead of their indicated need.  By obtaining informed consent for common procedures upon admission, the hospital’s intensive care unit may see an increase in documented informed consent, as well as a swifter response time to emergent events that require one or several procedures listed on the signed form.

In addition, obtaining universal consent at the outset can afford patients and their family members greater opportunity to dialogue with the physician regarding each of the procedures listed on the consent form and can better align these anticipated procedures with the patient’s goals of care.  Overall, this practice may serve as an efficient alternative to obtaining per-procedure consent in haste or performing a procedure without the patient’s express consent.

However, there is a difference between merely asking the patient to sign-off on a laundry list of procedures and engaging in an informed discussion with the patient regarding each procedure and its risks, benefits, and alternatives.  If it is the hospital’s practice to do the former, then there may be cause for concern that the patient, or their representative, is not providing actual informed consent.  In addition, expecting universal consent immediately upon admission for procedures that may occur could prove overwhelming, upsetting, or stressful to the patient or their representative.  Therefore, when considering whether to adopt universal consent forms, it is important to ensure that patient understanding, patient goals, and good bedside manner are not compromised as a result of the appeal of efficient documentation and expeditious care.

February 9, 2023

Posted on by jwilbert

QUESTION:
A physician called requesting a patient transfer to our hospital.  We would like to start recording these types of calls for patient safety and quality purposes.  Does the hospital have to obtain the callers’ consent prior to recording these communications?

OUR ANSWER FROM HORTYSPRINGER ATTORNEY MARY PATERNI:
The hospital’s obligation to get a caller’s consent prior to recording the communication depends on whether the hospital is located in a “one-party consent” or an “all-party consent” state.

One-party consent states allow a person to record so long as they are a party to the communication and consent to the recording.  In this case, the physician making the call does not have to be informed that the call is being recorded since the physician receiving the call has already provided the necessary consent.  The hospital may, as a courtesy, include an automated message at the top of the call that informs the physician making the transfer request that the conversation will be recorded.

On the other hand, states that have adopted “all-party consent” recording laws prohibit the use of devices to record absent the consent of all parties involved in the communication.  Therefore, if you find yourself in an “all-party consent” state, then the hospital will be required to disclose that it is recording the call prior to the start of the conversation.

When deciding whether and how to record patient transfer calls, keep in mind that the hospital is obligated under the HIPAA Privacy Rule to protect private health information shared during these communications.  Therefore, it is important that the hospital determine how it will record and how it will store these communications.  If, for instance, the hospital decides to contract with another entity to record and store these communications, then the entity will likely be furnishing Business Associate services.  In this case, it would be necessary for the hospital and the entity to enter into a business associate contract to ensure that the entity is safeguarding these communications in a manner appropriate under HIPAA.