Of course the patient has to agree to care, but consent to things that require an MD to do such as surgical consent, consent for IV contrast, invasive or risky procedures and AMA, cannot be done by an RN. That is straight up illegal.
Creating the Relationship
The physician-patient relationship is
created by mutual consent that may
be express or implied. For example,
an unconscious accident victim who
is brought to the emergency room
is not "knowingly" seeking the
services of a physician. Yet, the
relationship is created when the ER
doctor begins treatment. Mutual
consent is implied in this case.
Simply making an appointment for
the first time with a physician is not
usually sufficient to create the
relationship, even though there may
be mutual consent evidenced by
the patient making the appointment
and the physician scheduling it.
Generally, the duties and
obligations created by the
relationship do not arise until the
physician affirmatively undertakes
to diagnose and treat the patient, or
affirmatively participates in the
diagnosis and treatment. However,
an informal opinion (a curbside
consultation) offered to a colleague
regarding patient care does not
create a physician-patient
relationship in most jurisdictions.
Dear NYRN,
I'm not sure where your citation is from, but please refer to Emergency Physicians Monthly April 7, 2010. There is a discussion by William Sullivan, MD, JD about EP Duty. I assure you that if a patient comes to the ED and registers, but is not seen and dies in the waiting room...all eyes will be on the ED staff because there IS a duty to the patients even in the waiting room. This exact issue presented in NY itself and made national headlines when a patient was found on video to have died in the waiting room without receiving adequate assessments by ED staff passing by. Although the physician was not aware of the situation at all and had not even seen the patient, the duty was established already. Dr / Attorney Sullivan outlines how each case is unique and to believe absolute truths (i.e. duty cannot be established before being seen by the physician), might leave you surprised in an unfortunate way...
I also checked with our legal department here at Mayo Clinic who confirm that duty can be established even in the prehospital setting, but is highly likely to be legally established upon the patient entering and registering.
Also, as I was reading your citation closer, it notes that, "generally, the duties and obligations created by the relationship do not arise until the physician affirmatively undertakes to diagnose and treat the patient," this has been done in the ED when the patient registers...because, as you are aware we are required to perform a medical screening examination on anyone who registers to be seen.
The information about appointments are more appllicable to an outpatient office setting, but even there it suggests that duty can be established upon the physician scheduling the patient to be seen. This is partly, why nearly every medical establishment has the information about "if this is a life threatening emergency, please hang up the phone and call 911", because by the act of the patient calling your outpatient office (I learned from my parents who had outpatient practices), there is some duty established.
As for consent, no one should get consent for something they themselves are not performing, so the ED RN should not obtain consent for contrast, surgery, etc. Our Radiology contrast infusion RNs do obtain consent for contrast. Some of our other specialty nurses who perform actions that require consent, do obtain consent for that procedure (ex, our PICC RNs get consent for PICC placement).
This also applies to physicians; I as the ED doc will not consent someone for an appendectomy as I will not perform it. I do obtain consent for non emergent procedures that I myself will perform.
There are legal and EMTALA exceptions that allow certain locations to have nurses perform medical screening examinations. If a hospital system has established that an RN will perform all medical screening examinations (which is done in some places as noted above), then they can discuss AMA issues with the patient as well. This is because, as you point out AMA is in essence refusal of consent for something.
The take home...medicolegal issues are extremely complex, and are location dependent. To provide the safest care for both the patients welfare and the staff's legal protection, assume that duty to the patient is established early, anyone can discuss consent for procedures or interventions they themselves will perform, anyone can discuss AMA issues.
Everyone's actions are ultimately the responsibility of the attending physician responsible for the ED during the time the issue arises.
There is always gray, very few things are so black and white.
Sincerely,
TL
