Legal Considerations

Chapter 3 Legal Considerations



Catherine Bertram, JD, Stephen L. Altman, MD



INTRODUCTION


As trial lawyers with over 50 years of combined experience we urge you to invest the time it takes to read this chapter. Then, make a commitment to change your practice to consent patients correctly. Top surgeons understand that effective communication with their patients is a skill that needs to be updated and refined over time just like surgical technique. Proper consent does not require more time when you understand the true nature of an adequate consent.



LEGAL PITFALLS IN SURGICAL CARE BEFORE ENTERING THE OPERATING ROOM


Let us start by emphasizing the key point of this chapter—informed consent is a process. It is not a hospitalgenerated form. Surgeons make a critical error when they assume that getting a patient to sign the hospital’s consent forms means that they have complied with the requirements of informed consent. This error can be quite costly to your practice and to your reputation.


Consent is a process that requires communication between the surgeon and the patient. Usually, it is a two-step process that starts during the office visit and continues at the hospital before surgery. The office visit is your opportunity to take the time to explain the proposed surgery, the risks and alternatives, and the consequences of not proceeding. Thus, patients have time to reflect on all the information you have given them and can really make an informed decision to proceed with the surgery you suggest.


The time for having that discussion is not in the hallway of the same-day surgery unit while you are trying to get in the first case of the day. That is not fair to you or to the patient and is certainly not the best use of your time. Patients can feel pressured to agree and will often say they were so worried about the surgery that they did not even listen or that they signed the forms just to get things moving without having time to ask questions or to reflect on the complex decision they were asked to make.


In most hospitals, the surgical consent form is executed right before surgery. This is a good practice because it provides some evidence that the patient consented to surgery. However, in most states, that form alone is not sufficient to establish that you met your duty to your patient.


We have both seen surgeons mismanage their relationship with their patient and their family in ways that have led to medical errors, an omission through miscommunication, or claims from patients that the surgeon failed to provide them with sufficient information to make an informed decision about surgery: Here are three ways we have observed: (1) the surgeon acted as an all-knowing being; (2) no office notes were kept about the consent discussion or the refusal of care; (3) the surgeon did not tell the patients about who would assist with their surgery.



Surgeon as All-Knowing Being


If you have this aura and express it to your patients, then this is what they will expect. If you tell the patients what surgery they need and just assure them that “everything will be fine,” then you have taken complete responsibility for the decision making as well as the outcome. No wonder the patient (and the jury) will want to hold you 100% responsible for any negative outcome.






Practice Pointer.

Communication and decision making are a two-way street. Patients have responsibilities along with their rights. Share these responsibilities with the patient. Make the patient part of your health care team. Here are some ways to do that:


• Have brochures in your office that explain office hours, after-hours call procedures, what to do in an emergency, and who to call in your office if they are having problems after surgery. Tell them whether they are responsible for bringing their films to the hospital. Also, the brochure can outline their role in follow-up after getting laboratory tests, diagnostic tests, especially from outside providers. Make sure they understand how to get to you if they think they are having a complication and need to be seen. If others will take calls for you, explain how that works.

• Use American College of Surgeons or other specialized brochures, videos, and computergenerated educational materials to supplement your discussion with patients regarding the alternatives, risks, and benefits of the surgery you propose. Also direct them to websites that you think are accurate for basic information, if appropriate. You can provide a fact sheet that explains in detail why the surgery is performed, the alternatives, the risks, and what to expect after surgery. This can be handed out, not as a substitute for discussion, but as a supplement. Your staff can use a checklist to confirm that the patient received the materials. Whereas this is not a substitute for discussion, it certainly helps support your argument that the patient was thoroughly informed about the surgery before the big day!

• If you send a patient for a magnetic resonance imaging (MRI) scan at an outside facility and they need to come back to discuss results, the order for the MRI should include a section that reminds them that it is their responsibility to obtain the film and obtain a follow-up appointment. Many surgeons have the patient sign this acknowledgment. That is a good way to communicate that the patient is sharing responsibility for the implementation of the plan of care.


No Office Notes about the Consent Discussion or the Refusal of Care


A surgeon’s note, timed and dated contemporaneously with the event, is the best way to avoid subsequent allegations regarding lack of informed consent. Surgeons often fail to document the most important part of a discussion when a patient refuses care. The key part to document is that you told them the potential consequences of their refusal. A patient cannot make an informed decision about whether to have a surgery or a major diagnostic test without weighing what might happen if they do not have it.




Example: “Told the patient that the lump was probably just a cyst but told her to go and have a mammogram.”

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Jun 21, 2017 | Posted by in GENERAL SURGERY | Comments Off on Legal Considerations

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