Posted by Bill Sandweg on 21 December 2020.
The requirement for informed consent means that a doctor may not perform a procedure on you without first explaining the risks and benefits of the procedure and getting your approval to go forward. Informed consent is a critical part of any procedure but, in my experience, it is most often done in a rush and without adequate explanation of the risks.
I frequently meet prospective clients who have suffered an injury during a procedure who tell me the doctor never mentioned their injury as a possible outcome of the procedure. To the contrary, they usually tell me that the doctor hardly discussed risks at all and assured them this was a low risk procedure that was going to go smoothly.
As is reflected in the drawing above, there is always a written consent form. It is usually mostly “boilerplate” that is presented to every patient. It names the patient and the doctor performing the procedure “and his assistants.” It states that the patient has had all risks fully explained. It then specifically lists many bad things that can happen and says these are just a few examples of the risks that have been explained. Finally it states that all of the patient’s questions have been answered and that the patient consents to the doctor and his assistants performing the procedure. I am not sure I have ever seen a situation in which the actual events matched the pretend events set forth in the written informed consent.
The written consent form is often presented to the patient by nurses at the hospital or at the surgicenter, wherever the procedure is to be done. It is often presented just before the procedure. It is presented as though it is nothing more than a written confirmation that informed consent has already been obtained by the doctor. The doctor is not usually present when the consent form is presented. The patient is not encouraged to read the consent form or to ask questions. Even if the patient has questions at this point, in the absence of the doctor, the nurses are not going to be able to answer them, nor should they.
Although the written consent form is usually different than the consent that was actually discussed with the doctor and given by the patient, it is a part of the patient’s medical record, bears the patient’s signature and is considered by juries to be the holy word of God. Good luck in getting a jury to believe that no one told you about a possible risk when it is listed, along with many others, on the written consent form. Good luck in getting a jury to believe that the doctor never really discussed the risks of the procedure when the written consent says she did and that all questions were answered.
Given the critical importance of informed consent, it is just wrong that it is treated so cavalierly by doctors. Most doctors view informed consent as a nuisance. In their view, it is just another box that must be checked before they can do the procedure and get paid. They don’t take it seriously and do not engage in a meaningful discussion with their patient about the risks and benefits of the procedure. They just want the patient to trust their good judgment and be assured that the doctor would not have recommended the procedure, if the risks were not clearly outweighed by the benefits. Don’t let this happen to you.
Much to the consternation of some doctors, their patients now often do research on the internet before coming to see the doctor to discuss treatment options. You should be one of these annoying patients. Do not rely on the doctor to explain all of the risks and benefits of the potential treatments or how one treatment may be better for you than another. Do your homework before you go see the doctor and be prepared to ask questions. You may even want to write your questions down and also write down the doctor’s answers. Any doctor who objects to having a knowledgeable patient or to answering patient questions, is probably not a doctor that you want performing procedures on you.