Patient-signed handouts not always a good idea

September 12, 2008

Should ob/gyn physicians use a document for patients to read and sign that describes what the patient can reasonably expect from prenatal care?

Q:

Should ob/gyn physicians use a document for patients to read and sign that describes what the patient can reasonably expect from prenatal care? I have talked to a few doctors in the past about this issue. The concern is that the patient sometimes can have an unrealistic level of expectation. An attorney who I heard speak to a group of obstetricians said we should consider creating such a document as part of an informed consent for prenatal care. There are some tests or procedures that may or may not be necessary that the insurance provider may or may not cover.

None of the tests can identify 100 percent of all problems. There are no absolute guarantees, and all undesirable outcomes can not be foreseen or prevented. Everyone expects a perfect child but only God can guarantee this. Do you have such a document or ideas you can share with me?

A: It is generally recognized by the law, if not by some patients, that problems exist that are either unforeseeable or unpreventable and that, absent a specific statement to the contrary, there is no warranty of a good outcome in any medical situation. I also feel it necessary to remind my physician colleagues that no disclaimer will protect you against liability from actual negligence. With that said, though, there is general agreement that patients (as well as legal and accounting clients, etc.) frequently harbor unreasonable expectations because they either fail to listen to what they are told, fail to assimilate it, or fail to allow for the “worst-case scenarios” that we all present. Moreover, while television has fostered an unreasonably high expectation of physicians’ behavior and abilities, the Internet has facilitated the wide dissemination of medical information, not all of which is accurate or applicable -- a potentially explosive combination.

While I know of no generally accepted document such as you describe in your question, a well-written introduction to what a patient can expect in a particular situation would not only be legally prudent but generally appreciated. The patient would not only be reassured that certain events were normal, but also taught what signs or symptoms should prompt an immediate call to their physician. Additionally, I have a personal (not legal) opinion about having the patient sign a copy of the handout: don’t do it. First, I do not believe it should be part of the actual informed consent; a document usually so formidable that I’ve seen many patients hesitate to agree to such simple and frequently life-saving procedures as colonoscopy after reading it. Their anxiety would prevent their properly reading and remembering the contents of the handout anyway.

Secondly, as long as it is given to each patient, it can be shown that she was likely to have received it as part of your usual practice (less than perfect, but acceptable evidence). A more patient-friendly approach to such low-level documentation might be a list in the patient’s chart where you or your nurse or other office staff could note that it was given to the patient, along with a time, date and initials. More importantly, though, signing it would provide one more example to the patient that there is something adversarial about their relationship with you. They need to know they are receiving the document as part of the high level of patient care you normally provide, thus fostering the feeling that both of you are on the same side which, not coincidentally, you are.

I recognize that part of what I’ve said about not having the patient sign something acknowledging the receipt of such a patient handout may prove controversial, but my personal experience is that a large percentage of patients’ desire to sue physicians is brought on not by real negligence, or even by an untoward clinical event, but by anger engendered by their perception of being treated in either a callous or indifferent manner, or behavior interpreted as a cover-up. Informed consents and other such documentation are the prerequisite of defense in our litigious age, but the use of well prepared handouts or A-V material followed by even a few short minutes with the physician reviewing it with the patient and family (in addition to a longer review, question and answer session with your nurse or NP) can go a long way toward never having that lawsuit brought in the first place.

Eric Shore, an attorney concentrating in healthcare law, is a founding member and partner in the law firm of Kane & Shore, LLC in Philadelphia. Before entering the full-time practice of law, he practiced internal medicine for more than 25 years and earned an MBA in healthcare management. He has been medical director at several long term care facilities, a hospital chief of service, and a medical staff officer, as well as being a fellow of the American College of Legal Medicine, the American Academy of Family Physicians, and the American College of Medical Quality. He can be reached at eshore@KaneShore.com, or 610-664-4182.

The answers to these queries are general opinions and are not intended as substitutes for legal advice. You should not rely on these replies in making decisions involving questions of law, but should instead consult with competent legal counsel.