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The NSPA Blog

INFORMED CONSENT

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Posted on October 30th, 2019 by Bettina Carlson, under Patient Advocacy, Patient Tools, Take Charge

I wanted to write about something else in this week’s blog post. But then, I met an elderly women who shared with me the story of her husband. A story that in its essence is not singular to them, but presents a rather widespread challenge. A challenge that we all are exposed to when faced with medical interventions of any kind. And this makes it a challenge, that we all should be aware of.  This awareness then becomes our power tool should we find ourselves faced with making a decision regarding a medical intervention; it will give us control to take charge in our best interest. So, what am I talking about? Let’s read the story. 

The Husband’s Story 

As told by the wife: 

The husband suffered from spinal stenosis, which made walking difficult for him, and sometimes caused him moderate pain in his legs. They decided to consult a Neurosurgeon to discuss the husband’s situation and to learn what they could do to improve his situation. They looked for a doctor in the area and decided on one based on good reviews. They visited twice with the doctor, who ordered some tests, and upon reviewing the results, the doctor suggested a spinal surgery as the good option. 

They didn’t discuss any details with their children, because “they are so busy” they have no time for this type of stuff” and “we didn’t want to bother them”. Since the couple liked and trusted the doctor, and her husband desperately wanted to walk pain-free again, after the consultation with the doctor, they decided to go ahead with the surgery. This was a year ago. 

Today her husband is in pain worse than before the surgery, and he has less mobility than pre surgery. That is not because the surgery went wrong – technically the surgeon did everything right; but because, as was identified by another specialist afterwards, the husband hadn’t been a good candidate for the surgery. The quality of his bone mass was not in favor for the kind of surgery he received, and the risk of complication outweighed any benefit. According to the wife, they were not once told by their doctor that this is a possible risk! Had they known of this risk, they would not have chosen this surgery! They would have looked for another alternative or just accepted the husband’s limitations. They felt and still do feel betrayed. 

Because the husband consented to the surgery by signing the consent form in the hospital, he agreed to this possible risk, and now has little to no legal recourse. The wife says, they had to sign so many forms that day in the hospital, on paper and electronically, and everyone was so busy getting him ready for the surgery,  “We just signed whatever they handed us”. 

What happened to the husband is the failure of his doctor, and care team, to provide him with all pertinent information to this surgery, thus the husband was not in a position to could give his “informed” consent. 

What is “Informed Consent”?   

Patient Rights
Respect Ethics Honest Integrity Signpost Meaning Good Qualities

INFORMED CONSENT

“The process by which a patient learns about and understands the purpose, benefits, and potential risks of a medical or surgical intervention, including clinical trials, and then agrees to receive the treatment or participate in the trial. Informed consent generally requires the patient or responsible party to sign a statement confirming that they understand the risks and benefits of the procedure or treatment.” (https://www.medicinenet.com/script/main/art.asp?articlekey=22414)

Or as the Mayo Clinic elaborates in more detail:

“Medical informed consent is essential to the physician’s ability to diagnose and treat patients as well as the patient’s right to accept or reject clinical evaluation, treatment, or both. Medical informed consent should be an exchange of ideas that buttresses the patient-physician relationship. The consent process should be the foundation of the fiduciary relationship between a patient and a physician. Physicians must recognize that informed medical choice is an educational process and has the potential to affect the patient-physician alliance to their mutual benefit. Physicians must give patients equality in the covenant by educating them to make informed choices. When physicians and patients take medical informed consent seriously, the patient-physician relationship becomes a true partnership with shared decision-making authority and responsibility for outcomes. Physicians need to understand informed medical consent from an ethical foundation, as codified by statutory law in many states, and from a generalized common- law perspective requiring medical practice consistent with the standard of care. It is fundamental to the patient-physician relationship that each partner understands and accepts the degree of autonomy the patient desires in the decision-making process. (Mayo Clin Proc. 2008;83(3):313-319)” (https://www.mayoclinicproceedings.org/article/S0025-6196(11)60864-1/pdf; please copy this link and open it in a search engine).

And here is the concern with missed “Informed Consent” from the perspective of a health lawyer:

A few months ago, at a symposium I was attending, a health lawyer was presenting on Informed Consent. He was advising the audience (nurses, care managers, doctors, etc) that quickly getting a patient’s signature on the “dotted line” (paper or electronically) does NOT equate Informed Consent. While it legally covers the doctor or hospital in case of an injury to or death of a patient, it is at odds with providing the patient with full disclosure and information of all the benefits, all the risks, all the uncertainties, and all the alternative treatment options pertinent to whatever the particular medical intervention is. And that is formally wrong and unethical. And it can be grounds for malpractice lawsuits.

The lawyer went on to say, that when adverse outcomes happen, indeed some of these injured patients or the family members of a deceased patient seek his services to assist them with their unfortunate malpractice experience. And so, the previously uninformed and now injured patient is now his legal client! Neither his client nor the medical provider enjoy being in this position.

While his clients’ injuries and circumstances differ, what they all have in common, is that they are all saying,  they had no idea that their particular adverse outcome was a possible risk of whatever their procedure was!! Nobody informed them of those risks! It’s bad enough when an injury or death happens, but when it happens without you being informed of this possible risk, the damages go beyond the physical injuries – if it happens because your trusted doctor failed to educate you, this is a major breach of trust and so much harder to accept. And this damages the overall trust in the health care provider – patient relationship! 

The recourse for his clients can be quite limited since they signed the mandatory Consent form! Thus, many clients are left not only with the injuries (temporary or permanent), but many times also with the insult of huge medical bills, current and future; possibly even job loss because of their inability to perform their job due to their injuries. 

The audience sat silently. However harsh the above message may sound, the lawyer wasn’t blaming the medical providers. Blame is not productive! The lawyer intended to draw needed attention to the insufficiency of Informed Consent as it has become too common. He acknowledged the busy and rushed environment the medical providers work in, getting patients prepped for surgery – with many surgeries scheduled in one day, there is no time to “waste”. Similarly, in doctors’ offices, with the waiting room full of patients waiting to be seen, time is of the essence. 

One specific example of why lack of Informed Consent frequently happens in hospitals, the lawyer shared, is if a nurse takes too long to inform a patient on what any of the forms mean that they are required to sign, and the surgery preparations fall behind in timing, the nurse could get in trouble with the attending surgeon. And nobody wants to get in trouble with their surgeon. The surgeon is now stressed, because of what the delay means to his tight schedule. Also, the surgeon is accountable to the hospital administration for his surgery turnover, and he, in turn, doesn’t want to get in trouble with the administration. (Upon hearing the above, the audience went from silence to chuckling ). 

And just like that, Informed Consent can be rushed without proper education of the patient. With no ill intentions of the providers towards the patient. What may feel like just another routine item, the obtaining of the signature that the providers need to get in order to proceed with treatments and stay in compliance, is actually not only a critical legal documents, but even more significantly, it is an ethical document that must be treated with the appropriate respect and attention it was designed to receive – not only because it serves to protect the medical providers and hospitals, but also and foremost because it empowers the patient to make informed decision for their health!  

Finally

You may see now, the lawyer didn’t blame, just shone a spot light on the dark side of missed Informed Consent. With the light on, we can see what needs improvement and we can get to work on it. The audience seemed to be in agreement with this message. A short but positive and engaged discussion followed.

What can you do?! We, the health care consumers and potential future patients, can help ourselves, and our care providers, by actively engaging in informed decision making by asking questions. Educate yourself about your condition, and possible treatments. For example, Google them, but also talk with an experienced objective party regarding the full ramifications of procedures that may go wrong and make sure your physician, not the nurse explains everything fully and you are not rushed to sign. It is the patient’s responsibility as well as the doctor’s  to understand what lies ahead. You have rights, but you also have accountability towards yourself. And if you do not feel comfortable doing this alone, ask a family member or friend; well, or a Patient Advocate. Do what you can do, take charge and empower yourself and improve your health outcomes. 

Sources and Resources

https://www.medicinenet.com/script/main/art.asp?articlekey=22414

https://www.mayoclinicproceedings.org/article/S0025-6196(11)60864-1/pdf

The above article is an excellent and detailed overview on Informed Consent if you are interested in learning more about this concept. Please copy the link and open it in a search engine.

 

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