Where there's a will there's a way, as the saying goes, and that's becoming evident in the rough-and-tumble world of medical malpractice lawsuits. As caps on malpractice damages become increasingly common, plaintiffs are instead looking at physicians' failure to obtain informed consent as another possible lawsuit for patients who believe they've been wronged medically.
But when you think of (and treat) obtaining consent as a true extension of the physician-patient relationship, rather than part of a long checklist of things to accomplish during each patient visit, you go a long way toward increasing patient satisfaction as well as strengthening your legal position should such a case be brought against you.
What's the law?
We hope that, during a patient visit, you're not mulling over the legal ramifications of what you're doing. Of course, you want to — and should — be concentrating on giving the best care. But it may help you to know some background surrounding the informed consent process.
In most states, and except in emergencies, the treating physician must get the consent of the patient (or an authorized designate, like a parent or guardian, healthcare power of attorney, or family member) before performing any diagnostic procedure or medical treatment. The process is designed, in part, to protect patients against "unauthorized touching" during a medical examination or surgery, which is considered battery. And because battery is an intentional tort, it's subject to punitive damages in many states.
While the consent requirements vary from state to state, generally the patient must be given specifics about the procedure; its risks, benefits, and likely outcomes; alternative treatments; and what likely will occur if the recommended procedure is not performed.
Know the boundaries
There are, of course, exceptions to every rule, including this one. You are not required to obtain the patient's consent before administering treatment in certain limited circumstances, including medical emergency; if the patient has waived consent; and to protect the public health (for example, mandatory smallpox vaccinations or AIDS testing in certain situations). When a patient needs urgent care and is unable to consent, most states allow treatment without prior consent if you've made reasonable attempts to contact the next of kin.
Also, in this situation, the care you provide should not exceed what's required to alleviate the emergency. A classic case of exceeding consent is operating on the wrong body part; however, courts have become more creative when deciding scope of consent. For example, you may be permitted to undertake other procedures "deemed necessary and appropriate" during a procedure if the conditions were unknown at the time the consent is signed.
This allows you to address the actual cause of the patient's complaint by, for example, removing an intestinal growth causing the symptoms of appendicitis rather than removing an otherwise healthy appendix.
When treatment is refused
On the flip side of the coin, and just as important as your duty to obtain consent, is the patient's right to refuse treatment. Most states recognize that, in the absence of an overriding interest by the state (which may include suicide prevention or protection of viable fetuses), a competent adult can refuse "intrusions upon his person" even though the purpose of treatment is to sustain his life. The courts of most states will intervene, however, making consent unnecessary when a parent refuses to permit a blood transfusion, for instance, or a woman refuses to undergo a Caesarean section that could save her viable child.
Although a patient may withdraw consent anytime before the start of a procedure, it is rarely an issue in the surgical setting; however, the discharge "against medical advice" is a common type of consent withdrawal in the hospital setting and always should be carefully documented with the patient's signature.
Consent: doing it right
What informed consent isn't? Simply having the patient sign a preprinted form listing treatment risks and alternatives. Rather, think of (and practice) consent as a process of information exchange and an opportunity to educate the patient.
