Your responsibility for informed consent

May 19, 2006

You're responsible for providing whatever information a reasonable patient needs to make an intelligent decision regarding a recommended treatment.

Q. I referred a patient to a general surgeon for a procedure that turned out badly. Now, in addition to the surgeon, the patient is also suing me, a family physician, for failing to obtain adequate informed consent for her surgery. Isn't that the surgeon's job?

Your obligation to do so depends on your knowledge of the procedure, and the extent of your involvement with the patient before it, during her admission, and with her follow-up care. In one case, for example, an appellate court ruled that an internist who had referred a longtime patient for cardiac surgery could be held liable if a jury reasonably concluded that he should have known about the risks of the procedure for that particular patient.

In addition to minor office procedures, your informed consent obligation applies to nonoperative but invasive procedures such as sigmoidoscopy and endoscopy. It may also apply to medications you prescribe if they have significant risks or side effects. That's particularly important if you're prescribing major painkillers, narcotics, or other controlled substances.

Because of pressure from managed care plans, or the desire to boost practice income, many primary care physicians are now doing cosmetic, dermatologic, and other minor procedures in their offices. If something goes wrong, however, the doctor may be sued not only for negligence, but also for failing to disclose his limited training and experience in that procedure, or the fact that a specialist might have been more qualified to do it.

Suppose an internist perforates a patient's colon during a sigmoidoscopy. If the patient sues, his lawyer will most likely ask the doctor during the deposition or trial how often he does that procedure. If the answer is "not often," the next question will be, "And did you disclose that fact to your patient?"

Check with your state medical society or your insurance carrier to find out what your state's medical practice law requires in terms of obtaining informed consent. Be sure to document the consent discussion-and any relevant pamphlets, printouts, or websites you provide-in your progress notes. Whether it's disclosing your own qualifications or describing the risks and benefits of a treatment plan, the more information you provide, the more valid the patient's consent will be-and the stronger your defense will be-if you're sued.

The author, who can be contacted at lj@bestweb.net
, is a healthcare attorney in Mt. Kisco, NY, specializing 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, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to memalp@advanstar.com
.