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Advice on Consent

By Jock Hoffman, CRICO

Related to: Documentation, Informed Consent, Surgery

“If I had known this could happen, if I had known I would end up like this, I would not have agreed to surgery.”

It is not uncommon for the plaintiff in a surgery-related malpractice case (i.e., the patient alleging negligence) to proclaim that he or she was misinformed—or uninformed—about the risks associated with the surgical procedure that led to his or her injury.

Analysis of 2,533 surgery-related claims asserted from 2004-2008 and recorded in RMF Strategies’ Comparative Benchmarking Service (CBS) indicates that nine percent (N=201) alleged inadequate consent. Of the 335 CRICO surgery cases in that analysis, 68 (20 percent) had consent-related issues. General, orthopedic, and plastic surgeons were most commonly named in those cases.

The perception that an entrusted surgeon was not fully forthcoming about the risks of surgery clearly contributes to patient dissatisfaction and the motivation to sue when an injury occurs. Of course, patients rarely contend outright that they were not “consented” for the procedure. Indeed, the record almost always includes a signed form and some notes that the “risk, benefits, and alternatives were discussed.” What is debated, however, and what is often perceived differently by the clinician and the patient are the breadth, depth, and tenor of those discussions. Busy surgeons may succumb to rote recitation while patients may lose focus amongst the litany of complications, arcane data, and their swelling anxiety. Thus, the patient may not be truly “informed” and his or her expectations may not be in line with the surgeon’s—or even realistic. The gray space in between the two parties is fertile ground for post-operative disappointment and frustration. An unhurried, focused discussion resulting in congruent expectations helps both sides avoid that gap.

Developing protocols and training to guide both parties through this pre-operative process might best begin by revisiting the basic tenets of a good consent process, e.g., avoiding jargon, careful listening, patient read back, and engaging a close family member. More innovative ideas for aligning expectations include, among many:

  1. having patients envision and describe their post-op status (mobility, pain level, limitations, etc.) so that the surgeon can clarify what’s realistic and what’s overly optimistic; and
  2. sharing office notes with patients to help them review the discussion of risks and benefits and clear up any misunderstandings.

In the end, the technique is less important than the goal: a patient (and family) well-enough informed to make the decision to undergo the procedure and prepared enough for a less than perfect outcome.

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October 1, 2009
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