Reduce Malpractice Liability Risk Through Informed Consent

Implementing a proper informed consent policy at your practice could help you or your physicians avoid a guilty verdict.

Urologist James Gottesman was sued for malpractice more than two decades ago. Luckily, the jury acquitted him of all charges. He says that’s largely because of a policy he instituted at his practice years before the suit occurred.

“We all have the risk of being sued,” said Gottesman during his MGMA11 Conference session “Reducing Liability Risk through the Proactive Disclosure Approach to Informed Consent.” But there are ways to minimize the risk of being found guilty. One way, he said, is by implementing an adequate informed consent policy at your practice. Here’s why:

Gottesman’s malpractice case centered around two cancer screenings he conducted on a patient. During the first screening he detected no cancer, however, cancer did appear in a follow-up screening a few years later. The patient claimed Gottesman had been negligent for failing to detect the cancer during the first screening.

When the case went to trial, however, the jury reviewed the patient’s medical chart. It took note of the fact that the patient signed three consent forms prior to the screenings, Gottesman said. These forms detailed the risks involved, the benefits, and the alternative therapies. All three stated, “cancer may be present but may not be detected; additional biopsies may be needed to detect the cancer.”

Gottesman had taken the proper precautions to protect himself. In fact, he wrote those consent forms the patient signed himself.

My “negligence was totally deflected by informed consent,” Gottesman said. “Because I had told a patient exactly what could happen had happened, when it happened they weren’t going to hold me for it.”

Do your consent forms adequately protect you? Most likely they don’t, Gottesman said, noting a study that found that 75 percent of these forms do not meet the proper standards.

If the forms at your practice are lacking, here are some of his tips to improve them:

Be specific. Gottesman created consent forms for every procedure his patients underwent. “Every CPT code needed its own consent form,” he said. His forms were detailed, easily understood, and included information such as risks, benefits, and alternative treatment options.

Disclose all of the risks involved. It’s better to be upfront that a bad outcome might occur. That way if something unfortunate occurs, there will be less anger from the patient or family involved. It will also help negate the argument often used during malpractice cases: “Our physician never told us that!”

• Allow cushion time. The patient needs to sign the form at a suitable time. That means he should sign it when he decides to undergo the procedure. If the patient is asked to sign the form right before the procedure takes place, a jury might think he was pressured into the decision or he did not have an adequate amount of time to consider it.

• Don’t rely on the hospital. It is the physician’s job to ensure that the patient is aware of the risks, benefits, alternative therapies, etc. If the procedure is taking place at a hospital, the hospital will have the patient sign its own consent form, but the physician needs to have the patient sign his forms as well.

• Create a library. Once your forms are up-to-par, it’s a good idea to store them in an electronic library. That way it’s a very fast and easy process for staff pull them up when needed.

• Remember it’s a process. Physicians should sit down with the patient and his family members to discuss the procedure before the patient signs the consent form. Make sure they understand what’s involved and ask them to repeat the information back to you to ensure they understand it.

“Informed consent isn’t just a piece of paper, it is really a process,” Gottesman said. “It’s a process of sitting down with the patient and family and talking about the procedure that’s to be done, talking about the risks that are involved, trying to figure out what will happen if you don’t do the procedure, and making sure it’s understood.”