Are Your Consent Forms Sufficient Under New Case Law?

By: Stephanie Franco Holtzlander
BleekeDillonCrandall

Does your Consent Form sufficiently notify your patient that her physician is an independent contractor?

If not, your hospital or nursing home could be held liable for services provided by physicians who are independent contractors.

The Court of Appeals of Indiana issued an opinion on October 25, 2011, Plank v. Community Hospitals of Indiana, et al, finding that the defendant hospital’s Consent Form did not adequately clarify the legal relationship between the hospital and the physicians furnishing services to the plaintiff patient. Finding that the language of the consent form gave the patient “no way to know which of the physicians who provided services to her were independent contractors and, specifically, whether the radiologist who provided services to her was one of the many,” the Court held that the form was ambiguous. Thus, there was no evidence the patient was provided "meaningful written notice" that her radiologist was an independent contractor---and the radiologist was, therefore, deemed to be an agent or employee of the hospital.

So, what is “meaningful written notice?” Some courts have found that a hospital will avoid liability for a contractor physician’s malpractice by providing meaningful written notice to the patient which is acknowledged at the time of admission. In Georgia this can take the form of conspicuous signs posted in a hospital’s registration area, along with express language in the patient consent to treatment form, See Cantrell v. Northeast Georgia Med. Ctr., 235 Ga.App. 365, 508 S.E.2d 716, 719-720 (1998). In Texas, written notice signed by the patient is sufficient to release a hospital from liability for a contractor physician’s malpractice. See Valdez v. Pasadena Healthcare Management Inc., 975 S.W.2d 43, 48 (Tex.App. 1998)

The Plank decision confirms that in Indiana as well, a hospital can avoid liability for a contractor physician’s malpractice by providing the patient “meaningful written notice” of the nature of its relationship with the physician. However, what constitutes “meaningful” is less clear. Plank suggests that specificity regarding which physicians are independent contractors is necessary to avoid fatal ambiguity. Specific written acknowledgment by the patient is also likely to carry significant weight.

BleekeDillonCrandall Attorneys will be following this decision and will continue to keep you updated. For now, hospitals and nursing homes should take this opportunity to review Consent Forms and make any changes deemed necessary. Please contact Stephanie Holtzlander for any further questions.