Surgery: Risks with Informed Consent

Course overview

Obtaining the informed consent of the patient is required in all states before an invasive procedure that carries a material risk of harm is performed. This is a non-delegable duty of the practitioner who is going to perform the procedure; this means that the practitioner is ultimately responsible for the validity of the consent and cannot avoid liability by claiming that it was someone else's responsibility. However, obtaining informed consent should not be construed to be an obstacle. Obtaining informed consent can be a mechanism for reconciling the expectations of the parties. It is important for the surgeon to understand and appreciate the expectations of the patient and to reconcile them with the possible outcomes of the procedure. It is a recipe for disaster when a patient goes into a surgical episode of care with unrealistic expectations. Additionally, while valid informed consent cannot preclude all liability, it can preclude some types of liability. Most claims databases, including that maintained by the National Practitioner Data Bank, have a category for claims in which there was no negligence or misadventure. In this activity, we will review the various factors that practitioners should consider when obtaining a patient's informed consent. We will also cover the following aspects of informed consent: oral discussions; refusal of treatment; personal characteristics of the physician; use of standard language in the consent form; relationship between the parties; and duty to disclose alternatives. After completing this activity, practitioners should be able to: demonstrate how to perform and document the informed consent process; select when the informed consent emergency exception applies and when it does not; choose the information that should be disclosed and discussed during the informed consent process with a surgical patient; demonstrate under what circumstances an extension of surgery beyond what was originally contemplated can be done; categorize the issues surrounding the performance of surgery on a person with whom the surgeon has an intimate relationship; and apply the rationale for the requirement that alternative therapies be discussed in the informed consent process.