Negligence is a breach of duty. The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.
Plaintiff individual filed medical malpractice claim against defendant hospital and defendant doctor. At trial, medical experts testified that as a result of injuries sustained during a surgical procedure, the individual had an increased risk of future bowel obstructions. The trial court directed a verdict in favor of the hospital. The jury returned a verdict for the individual in her claim against the doctor. On appeal, the court affirmed the directed verdict and the jury verdict. The court held that the hospital owed no duty to the individual to ensure that the nonemployee doctor obtained informed consent for surgery he performed.
Does defendant hospital owe plaintiff individual the duty regarding informed consent for the surgery performed by defendant doctor?
The plaintiff claims that the hospital also had the duty to ensure that she had signed the hospital's informed consent form prior to giving her the preoperative medication. This contention is unsound, however, because it equates the signing of the form with the actuality of informed consent, which it is the sole responsibility of the attending physician to obtain. We have previously stated that, in order to obtain a patient's informed consent, a "physician's disclosure should include: '(1) the "nature" of the procedure, (2) the "risks" and "hazards" of the procedure, (3) the "alternatives" to the procedure, and (4) the anticipated "benefits" of the procedure.'" Logan v. Greenwich Hospital Assn., supra, 292, quoting A. Meisel & L. Kabnick, "Informed Consent to Medical Treatment: An Analysis of Recent Legislation," 41 U. Pitt. L. Rev. 407, 427 (1980); Significantly, we have never held that informed consent must be obtained at any specific time, so long as it is obtained prior to the commencement of the medical treatment under consideration. Further, we have never held that such consent must be given by the patient in writing or that a hospital, whose facilities are utilized by independent physicians, as a kind of surety, must guarantee that informed consent is obtained prior to the commencement of any surgical procedure.