Any time a patient is preparing to undergo a surgery,
the practitioner must provide an informed consent document. This
document, which ranges anywhere from a few pages to larger than
25 pages. The intent of this document was originally to inform
the patient about the risks associated with their procedure, to
allow the patient to ask any questions about the procedure, and
to generally make sure that the patient is mentally prepared for
the procedure.
However, the current intent of this document is
to protect doctors for medial malpractice cases by making sure
the patient has “signed-off”
on what can go wrong. Fortunately for the patient, merely signing
this document does not automatically give away any of your rights
to sue.
Proving an informed consent document is inadequate
requires three standards to be applied to the case:
Reasonable Physician Standard - What would a typical
physician say about this document? This standard allows the physician
to determine what information is appropriate to disclose.
Subjective Patient Standard - What would this
patient need to know and understand in order to make an informed
decision? This is the most challenging to incorporate into practice
as it requires the information to be tailored to the individual
patient.
Reasonable Person Standard - Would the average
patient (not you) have undergone the procedure if they had been
fully informed?
The most basic informed consent document should
contain these sections:
An explanation of the medical condition for which
the proposed procedure is warranted
An explanation of the purpose of the proposed
procedure or treatment
A description of the proposed procedure or treatment
including known and/or anticipated side-effects
A discussion of the known risks (including all
known conditions which might render the surgery inappropriate for
a particular patient) and benefits of the proposed procedure or
treatment and a presentation of alternatives to the procedure being
contemplated and their known side effects, risks, and benefits
A discussion of the consequences of not accepting
the proposed procedure or treatment
A statement that the procedure may involve risks
to the patient which are currently unforeseeable
A statement of the individual’s right to
withhold their consent to the proposed procedure and a statement
that such refusal will not impact on the individual’s current
or future right to receive continuing health care
A statement that the individual may withdraw consent
to the procedure at any time and that such withdrawal will not
impact on the individual’s right to receive continuing health
care.
A physician has several responsibilities in the
presentation of the informed consent, as well. He should provide
it to you in a timely manner, and you should be given adequate
time to process the information and formulate questions. This amount
of time varies for different patients. Some may come to the office
ready for the procedure having gotten their information and answers
to their questions from the Internet or a family doctor.
Others will arrive without any knowledge of the
procedure beyond what an advertisement has told them. A key problem
in this area is doctors presenting the informed consent just prior
to the procedure’s scheduled time to rush the patient into
signing it. First, and foremost, a doctor’s responsibility
to the patient is to make sure that the patient fully understands
what the doctor is going to do.
Thus, the informed consent document must be present
in
“plain English” avoiding most technical terminology
in favor of Layman’s terms. The explanations should be clear
and concise, and they should also be presented in the patient’s
first language. If the doctor or any of his staff is unable to
speak fluently in the patient’s primary language then a translator
should be provided. This should not be someone who knows the patient.
Since medical procedures are intended to be private
and confidential matters, an informed consent document should always
be presented in a private area where only the patient and the doctor
(and possibly a translator) are present. Presenting this information
to a patient in a public area like a lobby or cafeteria may make
the patient nervous, confused, or embarrassed.
The document should also be present by a medical
professional capable of performing the procedure. There are certain
questions a patient may have that only a qualified professional
can answer. An office worker or a nurse are probably not qualified
to present the informed consent.
Quite often if an office worker or non-qualified
person presents the document, that person will negate the informed
consent with such phrases as “just something we have to get
you to sign”
or “Don’t worry. None of this ever happens. We just
have to put it in.”
If you or a loved one has suffered due to Errors
During A Lasik Procedure, or other complications during Post
Operative Care, please contact one of our Lasik
Attorneys immediately.
