The term "getting consent" does not mean having a form signed. Getting consent means having a conversation with the patient. The contents of the conversation are influenced by state law, but will require you to tell the patient the purpose of the procedure, the recommended medication or treatment, and the risks, benefits, and alternatives.

Then the patient either consents or refuses.

At trial, informed consent often boils down to a credibility issue. The patient-plaintiff will testify that there was no consent conversation and no discussion about the risks. The doctor, in turn, will testify that there was a complete consent conversation with the patient.

When the orthopod mentions the meds, the patient becomes incensed, leading him to sue you for the cost of the surgery, and his pain and suffering. He will be a credible witness because he will believe that he was never warned. He will be sympathetic to the jury if he comes into court with a cast and crutches. The issue of whether you warned the patient will be paramount.

Whenever there is a credibility issue between witnesses, the court will look to the records for a determination of what actually happened. If there is no documentation of a consent conversation, the record will seemingly support the patient's story. If there is a consent form and progress note, the documentation would support the physician's version, perhaps leading to a favorable verdict.

The medical record is given great weight because it's regarded as a business document. It is written contemporaneously with the consent conversation when the physician's memory is fresh about the facts and details, and when there is no motive to slant the facts in one's own favor. Physicians have a great advantage: They can create this piece of evidence; the patient cannot.

The consent form is one piece of evidence to prove that you had a conversation with the patient and that the patient, with his signature, gave his consent. The physician should also sign and date the form for further proof.

The progress note is even more important than the consent form. In it, the physician should write "The material risks, benefits, and alternatives were discussed with the patient. The patient asked questions and understood. The patient consented."

The most important part of the documentation is the potential risks. If a patient seeks remuneration for an injury, it will be your failure to warn of that particular risk that will form the crux of a lawsuit.

Is it necessary to list all the risks? There are sometimes hundreds that could be associated with a treatment or procedure. It is adequate to state "The material risks were discussed." If you decide to list the risks, you must make it clear that the list is not all-inclusive. If you list 10 risks, and the patient develops complications based on a risk not listed, the documentation will not serve in your defense.

If done properly, the consent form, the progress note, and all the information you give the patient will help.

The author is a health-care attorney in Mt. Kisco, New York, specializing in risk-management issues. She can be reached at [email protected]. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to [email protected]
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