Document Category:
State: Indiana
Subject Matter: Are Your Consent Forms Sufficient Under New Case Law?
Document Title:

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
The Court of Appeals of Indiana issued an
opinion on October 25, 2011, Plank v. Community Hospitals of Indiana, et
, 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.
To review the case click here.
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
for any further questions.

Document Author: Stephanie Holtzlander
Firm/Company: BleekeDillonCrandall
Document Date: February 25, 2020
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