Sunday, April 17, 2005

In a recent post Kevin asks, in reference to a recurrent laryngeal nerve injury: Isn't part of informed consent acceptance of that risk? In some ways it is but it is not a shield from liability by any means. As one of his commenters put it:
Warning the patient of known complications of a procedure is protection against an informed consent lawsuit.

It is not an automatic protection or defense against lawsuit if the complication occurs. You still have to perform the procedure, and manage complications that might occur, provide adequate follow-up, etc, to the prevailing standard of care.

For example, you might warn me of bleeding. If I bleed to death, that doesn't protect you if it happened because you were negligent
Even more importantly informed consent is a process rather than simply a piece of paper. My office notes go into great detail about the risks, benefits and indications for a particular procedure and things that may increase that risk. If the patient described above had neck surgery or neck irraditaion in the past, that would increase the risks for nerve or parathyroid injury. Every procedure has a "buzzword" complication. Recurrent laryngeal nerve injury for thyroid surgery is one, common bile duct injury during laparoscopic cholecystectomy is another. Unless certain circumstances are in play, informed consent won't shield you from liability.
Informed consent does provide some protection for common, "low impact" complications like wound infections. The infection rare from an uncomplicated appendectomy is about ten percent, but the treatment for it is simple. Since patients are made aware of this my liability exposure is low. Informed consent also allows for the unexpected. From the "boilerplate" consent form used in my office:
I understand that during the course of the procedure described above it may be necessary or appropriate to perform additional procedures which are unforeseen or not known to be needed at the time this consent is given. I consent to and authorize the performance of such additional procedures as they deem necessary or appropriate.

This allows for the treatment of the unexpected. Such as the colon malignancy found during exploratory laparotomy for trauma. Sometimes a colostomy has to be constructed when not expected. Under the statement above, as well as listing some circumstances as "special risks", you can be covered.
There is also the school of thought that informed consent cannot be completely given freely. They maintain that patients give consent under duress because if they do not give it, they will be denied surgery, so they will sign anything to relive their pain.
A discussion about informed consent may be found here.
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