Sunday, July 10, 2016
Documenting Consent in Cosmetic Procedures
Informed consent is required for all invasive medical procedures. This includes procedures and medications involving the skin surface. Imperfect outcomes will occur, and measures are needed to reduce the incidence of legal problems.
Managing patient expectations is vital in the context of cosmetic procedures. Patents do not always have appropriate expectations as to what a procedure offers them. Most patients have been subjected to media advertising, which influences their decisions to seek out a particular procedure when other options may be more appropriate. When discussing a cosmetic procedure, the patient and the practitioner may envision an entirely different spectrum of potential outcomes.
The consent process is a vital element of the physician-patient interface. Documentation of the consent process is important to proper practice, not merely a tool to insulate the practitioner from liability. In an informed-consent lawsuit, the patient almost never acknowledges knowing of the risks of the surgery from the preoperative discussions. This phenomenon has been studied and reported on as a form of denial. The patient may be convinced of the need for the procedure and intent upon having its benefits. The possibility of poor outcomes may not enter the patient’s mind.
Responsible patients educate themselves and discuss the ramifications of a procedure with their physicians. Patients should not consent to surgery without developing the necessary level of trust in the practitioner. The more extensive the procedure, the longer it takes to develop that level of trust. If the practitioner takes an hour or more to discuss the procedure, the alternative forms of treatment, and the risks, complications and benefits of each, that conversation can be documented in less than a minute.
Visual aids and documents are available to assist the patient in understanding the procedure and giving an informed consent. Visual aids are also useful in allowing both judge and jury to understand the lengths to which the physician went in assuring that his patient’s consent was informed. If the patient admits having seen an anatomical model, a video or a pamphlet on the procedure, it is less important that the patient recalls little about the discussion of those visual aids. The physician can explain how an anatomical drawing or model is used in the consent discussion, show the video, or produce the pamphlet for evaluation by the jury.
It is important that the patient’s chart detail which pamphlet, diagram, video or other aid was used. This can be done with a series of checked-off boxes on the preoperative record of the patient. If the pamphlet routinely used in the office is updated, it is important to preserve a copy of the discontinued pamphlet in a dated folder in the event of a subsequent lawsuit. If a patient has stated any level of dissatisfaction with the outcome, placing a copy of the pamphlet provided before surgery in the patient’s chart thereafter is probably a good idea.
The consent forms used in surgical practice today range from the generic single-page forms adapted to any procedure to multi-page forms that contain paragraphs on the important categories of risk. It was once thought that explicit consent forms would deter many patients from consenting to procedures which would otherwise benefit them substantially. Those who use the detailed consent forms generally find that few patients decline a procedure. Those few may be the ones the surgeon needs to avoid.
The patient who refers friends to you is still a potential litigant. As nice as the patient may be, he or she has a friend who knows a good attorney. When that attorney requests a copy of your chart, your documentation of the consent has to make up for the deficiencies in the memory of your former patient.
John L.A. Lyddane, JD
John L.A. Lyddane, JD, is a Senior Trial Partner at Martin Clearwater & Bell LLP. He focuses his practice on the defense of technical personal injury and professional liability actions. For more information, visit mcblaw.com.