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Articles
Informed Consent - What You Need to Know
Few medical legal doctrines have evoked as much discussion and controversy as the
doctrine of "informed consent". The theory of informed consent is predicated on the
notion that every patient has a right to determine the course of his or her medical
treatment. Since medical treatment is based on highly technical and sophisticated
information, the law imposes an obligation on physicians to provide certain
relevant information to their patients which allows an informed decision to be made
concerning the course of medical care.
Simply stated the law recognizes that competent adults are entitled to make informed decisions about their medical
care.
Requirements concerning what the physician must disclose vary depending on the jurisdiction. As a general rule
however, most courts have held that a proper informed consent is obtained when the physician discloses:
 the nature of the proposed treatment in understandable terms
the risks and consequences of the procedure; and
the alternatives
The patient must be able to understand the information provided by the physician and must be a competent adult.
Thereis no magic formula setting forth precisely what the physician must disclose to the patient in each situation.
This is generally determined on a case by case basis. However, most jurisdiction require that the physician
disclose such alternatives and reasonably foreseeable risks and benefits as a reasonable physician under similar
circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation. Informed
consentstatutes typically provide only general guidelines for disclosure, which often leaves physicians in a
quandary as to what must be disclosed. Most courts adhere to the standard that the informed consent must conform to
what other physicians would disclose to a patient in the same or similar circumstances. The plaintiff must provide
expert testimony to establish that the disclosure by the physician did not adhere to the standard of practice. The
plaintiff must also establish that had the proper disclosure been given, the treatment would have been refused.
Many physicians will ask, "why not give the patient every foreseeable risk that I can think of" This is probably
not a wise course to follow since inevitably, a complication will arise that is not contained on your list. In most
cases it is preferable to inform the patient of the reasonably foreseeable risks and to add the qualifying language
that, the risks include but are not restricted to."
While most jurisdictions do not require a written informed consent, it is always a good idea to have one in your
chart. The danger is when the physician relies solely on the written form and fails to have a real communication
and exchange with the patient. It is also a sound practice to write a separate note in the chart documenting that
the informed consent discussion was had, that the patient was advised of risks, benefits and alternatives and given
an opportunity to ask questions. If the patient asked specific questions, those should be documented as well. The
signed form while helpful is by no means the end of the story since patients will often testify that they were
given no alternatives, had no discussion with the physician and simply signed the form without reading it. In the
last analysis, it is a question of credibility and the more credible side will prevail. The physician's credibility
can be greatly enhanced by proper and complete charting of informed consent discussions.
There are exceptions to the rule that requires an informed consent in all situations. These typically include
emergencies or other situations where consent was not reasonably possible. Other exceptions may include that the
risk in question is so rare as to not warrant a disclosure or that the patient assured the physician that the
procedure was desired regardless of the risks involved or simply did not wish to be informed of the risks.
Physicians would be well advised to check the rules and exceptions in the jurisdictions where they practice.
Failure to obtain an adequate and proper informed consent is a serious matter. It can give rise to a separate and
distinct basis for recovery against a physician even in the absence of malpractice i.e. where the medical care was
entirely appropriate. Good physician-patient communication is probably the single most important factor in
determining whether a patient will bring suit. Failure to obtain an informed consent is very often a reflection of
poor communication. It is in every physicians best interest to become familiar with the laws of informed consent in
their jurisdiction and through good, open and honest communication adapt those laws to their practice.
Marshal S. Endick is a senior partner in the New York law firm WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP.
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