The main defense against battery is consent. Generally, if you have
the patient's consent to do something — if the patient agrees to partic-
ipate in an activity — that act won't be an incidence of battery. There
are 2 forms of consent: expressed and implied. Expressed consent is
provided verbally, digitally or in written form. Implied consent is
when the patient behaves in a way that indicates she's agreed to par-
ticipate. A patient holding out her arm before an IV stick is implied
consent.
However, consent isn't static. It can be revoked at a moment's
notice. If you tell a patient you're going to start an IV and she puts her
arm out, that indicates consent. But if she tells you during the inser-
tion to stop, you should stop or risk being credibly accused of battery.
A reasonable nurse would step back and wait until permission was
granted again. He might talk with the patient, calm her down, allow
her to get settled, and then ask for consent again.
Show of support
There's nothing you can do to prevent a patient from suing you. That's
their right and you can't eliminate the risk. What you need to do is man-
age it. Don't get too upset about being named in a lawsuit. It's only a
notification of a difference of opinion between you and your patient.
Focus your energy on making sure you have the evidence to back your
side of the story, to prove to the jury that you met the standard of care. If
you do that, you should have a good chance of navigating this difficult
experience.
OSM
Mr. Duffy (williamduffy6967@comcast.net) is program director of nursing
and healthcare administration at Loyola University's Marcella Neihoff School
of Nursing in Chicago, Ill.
Medical Malpractice
MM
2 4 • O U T PA T I E N T S U R G E R Y M A G A Z I N E • D E C E M B E R 2 0 1 9
