Medical errors as a cause of death have made headlines again, some researchers estimate that 400,000 people die from medical error every year in the US. As one expert put it “That’s as if 2 747s were crashing every day”. So, why do we treat medical consent as a task to be checked off instead of an opportunity to convey important information to patients and their families?
There is no question that receiving modern care has its risks
The modern notion of medical consent dates back to 1908, when a judge wrote the following in a case which involved a woman’s assertion that her uterus was removed in a hospital without her knowledge or consent:
“…every human being of adult years in sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits battery for which he is liable in damages” These words laid the framework for modern bioethics and the basis for informed consent for health care procedures. All state medical societies and hospital associations have statements which address consent for treatment. For example, the California Hospital Association Patient Bill of Rights states:
All patients have the right to:
- Receive information about your health status, diagnosis, prognosis, course of treatment, prospects for recovery and outcomes of care (including unanticipated outcomes) in terms you can understand.
- Receive effective communication and to participate in the development and implementation of your plan of care.
- Participate in ethical questions that arise in the course of your care, including issues of conflict resolution, withholding resuscitative services, and forgoing or withdrawing life-sustaining treatment.
- Make decisions regarding medical care, and receive as much information about any proposed treatment or procedure as you may need in order to give informed consent or to refuse a course of treatment. Except in emergencies, this information shall include a description of the procedure or treatment, the medically significant risks involved, alternate courses of treatment or non-treatment and the risks involved in each, and the name of the person who will carry out the procedure or treatment.
Most Hospitals Fall Short When It Comes to Informed Consent
A former client of mine, Mr. N, who is a lawyer, had a biopsy scheduled at a local hospital to determine if a spot seen on CT scan was cancer. He was reluctant to undergo the procedure, having suffered through a prolonged hospitalization in his youth. However, he was not given the opportunity to express his concerns to the surgeon. On the day of surgery, the physician came into to obtain consent when Mr N was barely clothed and already lying on the operating table! When the physician tried to explain the procedure to Mr. N, he couldn’t hear or see because they had already removed his glasses and hearing aids. He refused to sign the form and the procedure was cancelled. The doctors and nurses labeled him a “difficult patient”. Mr N wrote a scathing letter to the hospital, then took his care elsewhere. Sadly, this scenario is more common than most people know.
Heavy Fines Can be Levied Against Institutions for Improper Informed Consent Procedures
Interestingly, most of the regulations are written around clinical experiments, and not routine procedures. In fact, consent processes for most routine procedures and surgeries is inconsistent across hospitals. At the very least, the following 7 things need to be conveyed about any procedure or surgery:
Consent processes for most routine procedures and surgeries is inconsistent across hospitals…
- What is being proposed
- Why it is being proposed (benefits)
- What alternatives are possible
- How it will be done
- What side effects can be expected
- What known risks are involved
- How much recovery time time can be expected.
We are not too confident that consent procedures are going to improve anytime soon, there’s just too much time pressure on doctor’s and nurses. However, we believe that patients and their families deserve better. Our advice is to take the consent process into your own hands by asking the right questions and consider that, except in emergencies, you always have other options.