Malpractice Consult

By Johnson, Lee J. | Medical Economics, July 28, 1997 | Go to article overview

Malpractice Consult


Johnson, Lee J., Medical Economics


Informed consent isn't just for surgery

When must a primarycare physician secure informed consent from patients? I always thought the need for consent is restricted to surgical procedures.

You were right in your thinking, but the law regarding informed consent is evolving. The trend has been for courts to expand the requirement that physicians secure consent for many non-surgical treatments.

Traditionally, informed consent has been required for any type of surgery. The law derived from patients' allegations of assault and battery, which means the "touching" of a person without prior consent. Over the years, the focus of consent has shifted to treatment, rather than "touching."

For example, in a recent Pennsylvania case, an appeals court ruled that an intercostal injection of a local anesthetic doesn't require informed consent. A patient had suffered rib fractures. Two months later, to relieve persistent pain, her physician performed an intercostal nerve block. Later that day, the patient became dyspneic, and it was determined that a pneumothorax had occurred. The patient sued the physician and claimed that she hadn't given her specific consent for the procedure and wasn't informed of its risks.

A trial court dismissed the claim. The judge ruled that informed consent was necessary only for operative procedures. An appeals court agreed, but suggested that the state Supreme Court should consider changing the requirement for informed consent to include non-operative regimens.

The basis for informed consent, the appellate court found, is the right of any patient to have "material information necessary to determine whether to proceed with the surgical or operative procedure." The court couldn't find precedent for requiring informed consent in cases involving an oral or injected drug. However, other jurisdictions would have agreed with the patient.

The safest course for you is to tell patients about the material risks and benefits of treatment regimens, and the alternatives. These include the prescribing of certain drugs and invasive but nonoperative procedures such as endoscopy.

Many hospitals require separate consent forms for surgery and anesthesia, even when the anesthesia is to be regional or local. Don't assume that one form works for both.

When a patient alleges "ghost surgery"

A patient signed a consent form stating that her operation would be performed by me or the associates and assistants under my direction. This is a fairly standard form used by surgeons in my area. If I allow an associate to perform most or even some of the procedure, such as closing for me or making the initial incision, can I be sued for "ghost surgery"?

As long as the patient was properly informed that another surgeon might participate in the procedure, you're probably on safe ground. In your informed-consent discussion with the patient, you should tell what will happen if you are unavailable, and make sure the patient consents. The consent form should authorize "Dr. …

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