Malpractice Consult

By Lee J. Johnson, JD

When bad news might make patients sicker

Q: In my cardiology practice, I treat some elderly patients who are mentally competent, but often very nervous and easily upset. I'm somewhat reluctant to have a full discussion about the risks or benefits of surgery if I think their chances of surviving a major operation aren't strong. The discussion itself could precipitate needless anxiety that might be harmful to their health. Any suggestions?

A: The law regarding informed consent is evolving, but the clear trend that's emerged in a series of recent cases requires physicians to reveal more information rather than less. If the patient has sufficient capacity under the law, you are typically required to have a full discussion of the risks, benefits, and alternatives to surgery, no matter how nervous the patient is.

Informed consent may be necessary even when you render noninvasive, conservative care. The standard isn't just what you think the patient should know, but what the average patient would want to know in order to make a decision.

This standard was upheld in a recent New Jersey case involving an osteoporotic 81-year-old woman who had fractured her hip. She went on bed rest, following the instructions of her orthopedic surgeon. He thought that conservative care was preferable to pinning the hip, since the patient's bones were probably too brittle to withstand insertion of pins. When complications developed, the patient sued, claiming that the surgeon hadn't informed her of the surgical alternative. She says she would have chosen the risk of surgery if she had been presented with that option.

The state's Supreme Court ruled that the doctor has a duty to disclose all courses of treatment that are medically reasonable. He must also discuss the risks and benefits of nontreatment. A physician can, and should, give his recommendations about which course he thinks is best, but the ultimate choice rests with the patient.

The concept of informed refusal requires that patients with mental capacity be told about all the material risks, benefits, and alternatives of refusing any surgical procedure.

You have a legitimate concern that a patient could become so upset at "bad news" that he could even suffer a myocardial infarction because of dealing with the strain of what you told him.

A handful of states permit doctors to skip informed consent discussions when the information would worsen the patient's condition. Under this "therapeutic exception," you may withhold information if you have a reasonable belief that complete disclosure could have a detrimental effect on the patient's physical or psychological health. However, this exception is rare. And it doesn't apply to mere doubts about the patient's mental state. To use this exception, you must have solid documentation to back up your position. If the patient's condition deteriorated without treatment, he could claim that he would have consented to the procedure if he had understood the risks.

In any informed consent discussion, tact and diplomacy count for a great deal. How you reveal information may be just as important as the specifics of what you say. You must use your words carefully so as to feel out the patient's emotional state and the effect that "bad news" might have on him. It's appropriate for you to say that you think the risks of a procedure could outweigh the potential benefits. But except in rare cases, the patient must be informed of the options.

The best alternative in these difficult cases is to ask the patient's permission to discuss the medical options with an adult relative. Document the patient's agreement. Although the relative isn't technically a guardian of the patient, he might help you gauge how the patient will react. Also document what you've told this person.

The author, who can be contacted at PO Box 37, Mount Kisco, NY 10549, or at leejohnson@dellnet.com, is a health care attorney who specializes in risk management issues. This department answers common professional-liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics magazine, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 201-722-2688 or send it via e-mail to memalp@medec.com.

 

Lee Johnson. Malpractice Consult. Medical Economics 2001;3:114.