Malpractice Consult

Article excerpt

Informed consent for unanticipated procedures

While I was performing a routine laparotomy, I noticed a mass on the patient's ovary. I then performed a total abdominal hysterectomy with bilateral salpingooophorectomy. In my opinion, the procedure was necessary, but now I'm being sued for failing to obtain the patient's consent. Wasn't I correct in going ahead with the second operation?

Generally, you may perform only procedures that you discussed with the patient, as documented in your progress notes, and had the patient agree to when she signed the informed-consent form.

In a New York case, a surgeon performed a hysterectomy under circumstances similar to yours. The consent form and the patient's testimony indicated that a laparotomy and possible dilation and curettage were the only procedures discussed. A jury agreed that the doctor should have obtained the patient's consent before doing the hysterectomy. It awarded her $2.5 million.

You'd have been justified in performing the additional operation without consent only if you had documented an emergency and could show that waiting and subjecting the patient to invasive treatment at a later date would have endangered her. Most states allow an exception to the informed-consent requirement when an emergency arises during an operation. Many consent forms specify that in an emergency a procedure may be done beyond the scope of the initial consent.

If you do additional surgery without informed consent, document the need for immediate treatment, and explain why delay would have endangered the patient.

Who's responsible for side effects?

Some of the medications I prescribe could have untoward reactions. If a patient suffers complications and wants to sue, who's liable--me or the pharmaceutical company?

Most likely, no one will have liability unless the risk was serious and the patient wasn't told of it. …