Attorney: “Doctor, we need to make some decisions about your case. The court calendar is quickly creeping up on us.”
Doctor: “Well, what are my choices?”
Attorney: “I would recommend that we file a demurrer.”
Doctor: “A demurrer? What’s that?”
Attorney: “It’s a complicated legal process, but I can tell you that it is probably the best way to achieve the most favorable outcome.”
Doctor: “But what are the other options? Can you explain them?”
Attorney: “One of your other options is that we go to a VSC, but I don’t know what will happen if a judge gets a hold of us.”
Doctor: “What’s a VSC, and what are the downsides to it? What are the risks of a VSC versus going to trial?”
Attorney: “Doctor, again, my recommendation is that you just go ahead and file the demurrer, then we’ll see what happens.”
Doctor: “Well, OK. You’re the expert.”

The doctor in this scenario is just as uninformed and confused about how to proceed as he was prior to the conversation. That’s because while words were indeed exchanged, they were meaningless to the doctor. He did not understand the attorney’s terminology; they did not speak the same “language.”

Although this scenario was placed in a legal context, it can just as easily be placed in a medical context. Have you ever found yourself in the attorney’s role with your patients?

Just as the attorney has a whole base of knowledge and understanding that the doctor doesn’t, so, too, do you have a base of knowledge and understanding that your patients don’t. Conveying that information so it makes sense to patients is the basis behind informed consent.

What is informed consent?
Informed consent is a legal doctrine that requires a physician to obtain consent from his or her patient for conducting diagnostic procedures, rendering treatment and performing operations.

This doctrine—which is recognized and guaranteed through various provisions of state and federal constitutions, court decisions and statutes— was founded on the premise that every competent adult has the fundamental right of self-determination over his or her body and property. (Minors and incompetent adults have the right to be represented by another who will protect their interests and preserve their basic rights.)

Physicians who fail to obtain a patient’s consent in accordance with applicable legal standards may be charged with battery, negligence and/or unprofessional conduct.

Although informed consent laws vary throughout the nation, there isn’t a state, or standard of care, in the country that does not recognize the need for physicians to carry on discussions with the patient about his or her healthcare.

Some states have even articulated specific situations when informed consent must occur. For example, in California, physicians must obtain informed consent for vaccinations, the treatment of breast and prostate cancers and other procedures/treatments.

The components of informed consent
In order to obtain informed consent from a patient, the physician should discuss the following:

• Risks and benefits of a proposed treatment or procedure. (It is important that you use lay terms; e.g., rather than saying “blepharoplasty,” say “eyelid surgery.”)
• Alternatives to a proposed treatment or procedure.
• Risks and benefits of the alternative treatments or procedure.
• Risks and benefits of doing nothing and/or refusing treatment.

How much information is needed to obtain proper informed consent?

Obviously, a physician cannot tell a patient everything he or she knows about a treatment or procedure. Although some states use the “reasonable physician” standard—where disclosure is based upon what a reasonable practitioner in the medical community would disclose under the same or similar circumstances—many courts are leaning toward the “patient viewpoint standard,” where disclosure is based on what a reasonable person in the patient’s position would want to know.

Who can obtain informed consent from a patient?
The treating or performing physician is responsible for obtaining informed consent. In most states, it is a nondelegable duty, although the physician may use support personnel (such as physician assistants and nurse practitioners) as well as materials (such as videos and brochures) to provide supplemental education only.

Patient refusal
What if after you go through all of the components of the informed consent process, a patient refuses your proposed treatment or procedure? As a physician, you have to accept that this will happen from time to time and remember that your role is not to convince patients, but to provide them with sufficient information to facilitate the informed decision that is right for them.

Even if a patient refuses treatment that you think is in his or her best interest, you must respect his or her wishes because of the right to self-determination. And that right is predominant in all patient-physician interactions. And don’t forget your duty to discuss the risks and benefits associated with the patient’s informed refusal.

Whatever decision the patient makes, be sure to document this in the medical record as well as what transpired during the informed consent process.

Conclusion
It is important to remember that informed consent is a process, not a form (although forms may be involved and, in fact, are sometimes required in certain jurisdictions). Informed consent is a process through which a patient—in dialogue with his or her physician— decides whether to proceed with a recommended course of treatment or procedure. A patient should always have an opportunity to pose questions—and obtain understandable answers. (By the way, a VSC is a voluntary settlement conference.)