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Medical Malpractice Informed Consent

Fairfax Injury Lawyer Brien Roche Addresses Medical Malpractice Informed Consent

Brien Roche

Professor George Annas from Boston University’s School of Public Health recently contended at a meeting of the American Bar Association that informed consent was under attack.  He cited the fact that physicians in some specialties were encouraged to perform procedures without informed consent and that the process of obtaining informed consent was really just a matter of having a patient sign a form as opposed to ensuring that the patient actually understood what was going on.  Between 2004 and 2009 the National Institutes of Health according to Annas funded a study that sought to find ways to improve treatment for premature babies.  Some of the extremely premature newborns were given different levels of oxygen.  Annas maintains that the parents were not informed of the risk of death or blindness which is a conclusion reached by the federal Office for Human Research Protections.  As a result of Annas’ comments, in 2014 the American Bar Association decided to engage in an intensive study of the issue of informed consent.  Starting in October of 2014 the committee held a series of town hall meetings across the United States to gather comments about informed consent.  At this point it is unclear as to exactly what the committee will do with information that it gathers.

The Elements of Medical Malpractice Informed Consent Claims

Although all states mandate that informed consent be obtained from a patient for treatment or research to be undertaken as to the patient there is not much data available as to the actual mode of obtaining informed consent for treatment.  According to the American Medical Association informed consent means:

  1. The patient is provided with a diagnosis if it is known.
  2. The nature and purpose of the treatment is explained.
  3. The risk and benefits of the treatment is explained.
  4. Alternatives to that treatment are explained regardless of the cost or coverage by insurance.
  5. The risk and benefits of the alternatives are explained.
  6. The risk and benefits of not receiving treatment are explained.

Clearly the concept of informed consent was designed to encourage physicians to communicate with patients as to the procedure that they’re about to undergo and to make sure they understand what needs to be understood about the procedure with the available alternatives so that they can then make an informed decision.

Unfortunately what all too often happens is that the patient is simply presented with a form and told to sign it.  Sometimes that form is presented to the patient shortly before the procedure is undertaken.  It may well be that the physician as part of an office consultation has already explained the procedure and the reason for it but that quite frequently is not documented.

In an ideal world the procedure and all of the issues referenced above would be explained to the patient orally, those oral statements would then be summarized in writing for the patient to then review in a calmer atmosphere outside of the physician’s office and only after the patient signed the informed consent form would the procedure then be scheduled.

The whole concept of obtaining informed consent becomes problematic where the patient has some diminished capacity or no capacity.  In that instance a medical agent should be required in order undergo the same process of obtaining informed consent.

Some hospitals go the extent of having informed consent navigators present so that before the patient undergoes the procedure it is clearly documented that the patient understands all of the issues referenced above.For more information on informed consent see the pages on Wikipedia.

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Medical Malpractice Informed Consent

Fairfax Injury Lawyer Brien Roche Addresses Medical Malpractice Informed Consent

Brien Roche

Professor George Annas from Boston University’s School of Public Health recently contended at a meeting of the American Bar Association that informed consent was under attack.  He cited the fact that physicians in some specialties were encouraged to perform procedures without informed consent and that the process of obtaining informed consent was really just a matter of having a patient sign a form as opposed to ensuring that the patient actually understood what was going on.  Between 2004 and 2009 the National Institutes of Health according to Annas funded a study that sought to find ways to improve treatment for premature babies.  Some of the extremely premature newborns were given different levels of oxygen.  Annas maintains that the parents were not informed of the risk of death or blindness which is a conclusion reached by the federal Office for Human Research Protections.  As a result of Annas’ comments, in 2014 the American Bar Association decided to engage in an intensive study of the issue of informed consent.  Starting in October of 2014 the committee held a series of town hall meetings across the United States to gather comments about informed consent.  At this point it is unclear as to exactly what the committee will do with information that it gathers.

The Elements of Medical Malpractice Informed Consent Claims

Although all states mandate that informed consent be obtained from a patient for treatment or research to be undertaken as to the patient there is not much data available as to the actual mode of obtaining informed consent for treatment.  According to the American Medical Association informed consent means:

  1. The patient is provided with a diagnosis if it is known.
  2. The nature and purpose of the treatment is explained.
  3. The risk and benefits of the treatment is explained.
  4. Alternatives to that treatment are explained regardless of the cost or coverage by insurance.
  5. The risk and benefits of the alternatives are explained.
  6. The risk and benefits of not receiving treatment are explained.

Clearly the concept of informed consent was designed to encourage physicians to communicate with patients as to the procedure that they’re about to undergo and to make sure they understand what needs to be understood about the procedure with the available alternatives so that they can then make an informed decision.

Unfortunately what all too often happens is that the patient is simply presented with a form and told to sign it.  Sometimes that form is presented to the patient shortly before the procedure is undertaken.  It may well be that the physician as part of an office consultation has already explained the procedure and the reason for it but that quite frequently is not documented.

In an ideal world the procedure and all of the issues referenced above would be explained to the patient orally, those oral statements would then be summarized in writing for the patient to then review in a calmer atmosphere outside of the physician’s office and only after the patient signed the informed consent form would the procedure then be scheduled.

The whole concept of obtaining informed consent becomes problematic where the patient has some diminished capacity or no capacity.  In that instance a medical agent should be required in order undergo the same process of obtaining informed consent.

Some hospitals go the extent of having informed consent navigators present so that before the patient undergoes the procedure it is clearly documented that the patient understands all of the issues referenced above.For more information on informed consent see the pages on Wikipedia.

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