Proper Consent Forms Can Be Good Evidence
Johnson, Lee J., Medical Economics
Your attorney can use your consent forms and progress notes to build your defense in cases alleging lack of informed consent. The consent form is such good evidence that many plaintiffs' attorneys will not accept a consent-related case if they see a valid informed consent form as part of the evidence. Some points to remember regarding the consent form:
* Discussion. The doctor who will perform the procedure is the one who should have the consent conversation.
* Witnesses. A nurse or assistant is the best witness. The witness does not have to be present at the conversation. In fact, it probably is better if he or she is not present, because his or her memory of what was discussed is not likely to be fruitful. The witness can attest to 3 facts- that the patient appears competent, that the patient says he or she had a conversation with the doctor, and that the patient signs the form-after the conversation.
* Names. The form should include the name of the doctor who will be performing the procedure as well as the names of those assisting the physician with the procedure, to ensure that a claim of ghost surgery cannot be made.
* Variation. It's fine, but not necessary, to create a specific form for each procedure, and some of the information can be printed. You can see an example of a general form at memag.com/consentform.
* Frequency. Have a patient sign a form every time you discuss a recommended procedure with him or her. The referring doctor has a degree of participation in the recommended procedure and should use a form for his or her own protection, because the referring physician could be named in a lawsuit along with the doctor who performs the procedure.
* Language. Describe the procedure in simple English. For example, instead of "salpingo-oophorectomy," write "removal of fallopian tube and ovary."
If the patient doesn't speak English, get an interpreter to translate the discussion and sign the form. Do not use a family member for this purpose; his or her recollection of what was discussed likely would be biased against you. It is acceptable to use a staff member who speaks the patient's language. Many medical societies also provide interpreters. Some are available by telephone if an in-person interpreter is not available.
* Risks. The danger in listing risks is that, even if you are thorough, you may not include the ones that ultimately affect the patient. …