6 Ways Docs Go Wrong With Informed Consent November 20, 2014 ( This topic has been posted by Mohan. This is a reminder.)
Mark Crane – Free Lance Journalist

1 “If only the doctor had warned me of this terrible complication, I never would have agreed to his treatment.”

When a patient has a poor outcome, that statement is typically the basis for a malpractice lawsuit claiming that the physician didn’t provide adequate informed consent before a procedure or treatment.

2 ‘Sign This So We Can Get Started’

It’s the discussion—the give-and-take—between the doctor and patient. “Doctors need to disclose the material risks. That means the most common likely potential risks and the most severe ones, including death, paralysis, or brain damage,” says Schoppmann. “”Doctors need to explain that any time there’s a procedure that’s invasive or involves anesthesia, there is a risk of harm, including death,” said Schoppmann. The discussion helps build rapport. Patients who feel that their doctor has been candid with them are less likely to sue even if there’s a poor outcome. Informed consent should be seen as a risk-management tool, not an oppressive burden for the doctor.”

3 Don’t Ask a Sedated Patient to Sign a Form

Sometimes patients are given a mild sedative such as diazepam before the doctor asks them to sign the form. “We’ve seen a number of lawsuits where that happens,” Schoppmann said. “The plaintiff’s attorney can argue that this isn’t legitimate informed consent because the patient isn’t of coherent mind to give consent.”

4 Warn Patients They May Need a Second Operation.

The doctor may have a signed consent for a lumpectomy but not a mastectomy. He may have consent to remove fibroids but not for a hysterectomy. “If you don’t have specific consent for the more serious operation, the procedure has to end,” said Schoppmann. “The patient needs time to recover from the anesthesia and then you need to have a second discussion where she gives consent again.

5 Even ‘Minor’ Issues May Require Informed Consent

Informed consent isn’t only for surgeons. The type of care and treatment rendered in an office setting continues to expand and informed consent may be required. Physicians could have claims filed against them for not disclosing risks of even small things such as mole removal, blood pressure medication, colonoscopy, CT scans, stitches, flu shots, etc.

“A parent brings a young child into an FP’s office because of a laceration,” said Schoppmann. “You should discuss with the parent that she may want to get a consultation from a plastic surgeon. The parent declines and asks the FP to close the wound. Then there’s a residual scar. The family may claim that you never mentioned the option of having a plastic surgeon close the wound. You need to adequately document that you offered the option and the family declined.”

6 Don’t Forget to Document Informed Refusal

“In many cases, documenting informed refusal may be more important than informed consent,” said Schoppmann. Take an ob/gyn who recommends amniocentesis. “He informed the patient of all the risks but didn’t tell her what could happen if she declines it,” said healthcare attorney Lee Johnson. “The patient refused the procedure and gave birth to an infant with Down syndrome. The patient then sued the physician and won.” In another case, a physician asked the patient to get a Pap smear. “The patient refused and ended up dying of cancer,” she said. “The doctor had put in his notes that she refused but didn’t write that she was aware of the consequences of not getting it done, including death. The family sued. Because the doctor didn’t clearly document that the patient was aware of the risks of not getting the Pap smear, he lost the case.”

The good news about informed consent is that physicians win the vast majority of these cases, said Schoppmann.