Q: When we have a fracture patient in the ER we evaluate whether they will need surgery and then call the orthopedist, who does the actual consent for the procedure. Now we have a clipboard administrator telling us that we can’t give pain meds to the patient until they have signed the consent. It can take a while for Ortho to send someone and leaving a patient in pain seems insane to me. On the other hand, I don’t want to delay their surgery because another clipboarder then says that the consent is no good. What’s the right way to go on this?

A: The medicolegal issue is that a patient who has received a medication that may impair consciousness may not then be able to give valid consent since that requires them to be in a condition to understand the risks and benefits of the procedure and to make a reasonable decision about whether to go forward with the care. The concern is that if there is a lawsuit that the plaintiff’s attorney may be able to challenge the consent by pointing out that their client was medicated before it was obtained.

Of course, in reality there is a difference between obtunding the patient and just reducing their pain to a tolerable level while leaving them oriented and competent to consent.

There is also the issue that a patient in serious pain may also not be able to give valid consent because they cannot focus on what the doctor is explaining to them and will sign anything just to get the pain to stop.

The concern over a lawsuit is also countered by the fact that if the patient does have a bad outcome the fact that they were left in pain for an extended period will make them more likely to see their care as substandard and to have resentment against the hospital and the staff and so be more likely to sue. They may also make a complaint to the state medical board over being left in pain in and of itself even if the outcome of the surgery is great.

This is therefore a matter to have the ER director address with administration, including setting out the fact of actually increased liability risk with this absolutist policy.  They need to create protocols on pain treatment in the pre-consent interval including limits on the timing of the dose relative to the point at which the consent is taken and specific documentation of the patient’s mental status after the dose is given.