You Never Told Me THAT Could Happen!

Avoiding a Lack of Informed Consent Lawsuit

by Robyn P. Ayres

In my experience, there are few cases more frustrating for a physician than one involving a patient who claims lack of informed consent. This is an allegation by a patient that her physician did not inform her of a certain risk, and the patient suffers that complication. Typically, the response from the physician is, “Of course I did!” and “But, she signed a consent!” Then we look at the chart and the documentation of the discussion about the procedure and the associated risks is scant.

Unfortunately, the world of informed consent is more complicated than one may expect. Regardless of a signed consent form, the chart should contain language establishing that the physician discussed how the procedure would be performed and the associated risks. Clearly, there is not always time to dictate or even discuss every possible complication. In Virginia, a physician is required to disclose those risks that would be disclosed by “a reasonably prudent practitioner”.

To prove this kind of claim, the patient must find a physician in the same or a related field to offer expert testimony that the defendant physician failed to adequately discuss the risks associated with the procedure – a task not nearly as difficult as one might expect. I’m surprised by how many medical practices use generic consent forms that are not specific to the procedure and list only (in surgery cases), “bleeding, infection and death” as risks. Yes, those are the direst, but if your patient has another complication (nerve damage, loss of function, weakness, etc.) the consent form is not much help, and we look to the chart. The corollary is that a detailed consent form does not substitute for evidence that the physician actually went over those risks. A lot of consent cases stem from the patient’s overall lack of understanding about how the procedure would be done (surgical approach, neighboring anatomy, etc.). When possible, handwritten diagrams can be helpful, particularity if a copy has been placed into the chart. If the patient is shown imaging, anatomic models, or provided literature, make sure it is clearly documented.

All of these suggestions are perhaps even important in the unfortunate event that the patient has died and the suit is brought by the family. In those cases, generally, the physician’s testimony regarding his discussions with the patient will only be admissible before the jury if there is corroborating evidence, such as documentation in the chart. The legal reasoning is that the patient is no longer here to tell her side of the story. Nothing is more frustrating than telling a physician that she cannot testify regarding the specifics of her discussion with the patient because little, if anything, is documented.

The good news is that a claim of lack of informed consent also requires that the patient prove, usually through his own testimony or family, that he would have declined the treatment had he known the allegedly undisclosed risk.

This article was published in Hampton Roads Physician Fall 2018 issue.

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