Incomplete Informed Consent as Good as None at All

March 19, 2015

Informed consent traditionally attempts to indemnify liability. Without disclosing risk and cost, it creates it.

For those of us who are alarmed at the extent of federal overreach and overregulation in healthcare, it's time to take a breath and consider why legislators, policymakers, and bureaucrats seem to feel so compelled to regulate what we do so intensely.

Take "informed consent," for example.

Traditional informed consent is a lot of legalese attempting to indemnify providers from generic mistakes, poor outcomes, even negligence, and offers little to no explanation of the specific risks or costs of recommended interventions, diagnostics, and procedures, thus leaving patients in the dark, and on the hook for both costs and consequences.

I'm not an attorney. However, it doesn't take one to realize that new liabilities are created all of the time.

In any business other than healthcare, causing or delivering a bill for hundreds or thousands of dollars for work often done without explaining why, the potential consequences, costs, and never disclosing if it's just to cover the business' butt or make its job easier would result in civil, maybe even criminal, liability as well as incensed judges and juries looking to send a strong message.

In today's world of "patient responsibility," their responsibility to pay the cost of what you order and the consequences if there are any create those new liabilities.

Trial attorneys are smart, resourceful, and opportunistic. Explaining and documenting the specific risks and costs are simple and prudent protection for you and your patients. You may not know the exact cost, however, it is almost always expensive and a ballpark will do. That way, if a patient declines, it's against medical advice.

Letting risk and cost remain your patients' concern is a sure way to make their concerns yours sooner or later.

That is sure to be an expensive lesson for everyone.

There are three simple things you can do to make informed consent protect both you and your patients:

1. Explain risks and benefits in threes (most people tune out any more than three risks or benefits at a time);

2. Explain the general cost and why what you are proposing is worth the expense; and

3. Document.

If you can’t justify what you are proposing, it isn’t needed - a simple rule of thumb that benefits you, your patients, and the healthcare system.