Q: When we have a fracture in the ED, we determine if surgery is necessary and then call the orthopedist, who obtains consent for the procedure. Now, we have a clipboard administrator telling us we can’t give pain meds to the patient until they have signed the consent. It can take a while for the orthopedist to get there and leaving a patient in pain seems wrong. On the other hand, I don’t want to delay surgery when another clip boarder then says the consent is no good. What’s the right way to go?

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, which requires them to be in a condition to understand the risks and benefits and to make a reasonable decision about whether to go forward. The concern is that, if there is a lawsuit, 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, there is a difference between obtunding the patient and reducing 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 not be able to give valid consent because they will sign anything just to get the pain to stop.

Concern over a lawsuit is also countered by the fact that if the patient does have a bad outcome, being left in pain for an extended period will make them more likely to see their care as substandard and therefore more likely to sue. They may also make a complaint to the state medical board over being left in pain, even if the surgery’s outcome is great.

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

This article was written by Dr. Med Law, a physician and medical malpractice attorney.