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.
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