With a growing number of surgeries now being conducted in outpatient settings, it is more important than ever that anesthesiologists be diligent in initiating and completing the informed consent process with patients. Since anesthesia is an independent procedure with its own set of risks and complications, the American Society of Anesthesiologists and many professional liability defense attorneys recommend using separate consent forms for the anesthesia procedure and the surgical procedure.

Study shows inadequate consent process
Whether in outpatient or inpatient settings, many patients are not receiving adequate information about the anesthesia procedure. Case in point: Researchers at Pennsylvania State University conducted a study (1998) in which they evaluated 616 anesthesia consent forms from hospitals nationwide. They found that while 87% of the forms asked for permission to administer anesthesia, only 47% stated that anesthesia presented additional risks to the surgical procedure, and only 14% addressed those risks. The results of this survey clearly show that many anesthesiology consent forms need to be revised to be more effective.

Qualities of effective consent forms
Since legal requirements vary from state to state, there are a number of different versions of anesthesiology consent forms in circulation. The most effective forms, however, should contain the following four elements: • a detailed description of the nature of the anesthesia procedure and the method of administration • the identity of the person who will administer the anesthesia, especially if the attending anesthesiologist is not the person obtaining the consent • an explanation of the risks, complications and dangers of anesthesia • an explanation of alternative anesthesia procedures and their risks.

Informed consent—more than a form
It is important to remember that informed consent is a process, not just a form.

Specifically, it is a legal process through which a patient—in consultation with his or her physician—decides whether to undergo a recommended course of treatment or procedure.

The anesthesiologist, therefore, must thoroughly explain the information on the consent form and answer any of the patient’s questions. It is important that the patient completely understands the nature of the consent. That conversation, of course, should be documented in the patient’s record.

Further ways to reduce risk
In addition to completing a thorough informed consent process with a patient, there are several other steps anesthesiologists can take to minimize their liability risks. The following recommendations are based on advice provided by the American Society of Anesthesiologists:

• Improve the doctor-patient relationship. Anesthesiologists are more likely to be sued than primary care physicians for the simple reason that anesthesiologists rarely make meaningful connections with patients. Often they are no more than a name on a rather substantial bill. It is much easier to blame an unknown anesthesiologist for a less-than-perfect outcome than a surgeon who spent quality time getting to know the patient and family.

  If it is impossible to make regular bedside visits with each and every patient, anesthesiologists should at least strive to improve contact with patients who are unusually anxious, ill or prone to specific complications. And even if they don’t personally conduct full physical exams or take complete histories, anesthesiologists should let patients know that they are well aware of the patient’s condition from other sources. This shows concern and involvement.

• Adhere to a standard of care. In determining medical negligence, anesthesiologists are held to the prevailing standard of care. This means that they must conform to accepted guidelines for the provision of anesthesia care. It is incumbent upon the anesthesiologist to know what those guidelines are.
• Keep accurate records. Document everything in the medical record. Record everything that was done and the time it was done. Remain objective and avoid using words such as “inadvertently,” which imply guilt or negligence. Never alter a record after the fact.
• Respond appropriately to an adverse event. If in a hospital setting, notify hospital risk management immediately (and a SCPIE risk manager as soon as possible) after an adverse outcome that is related to anesthesia. Continue to follow the patient during hospitalization; failure to do so could be construed as abandonment or, at the very least, disinterest. (Note: There is a new law in California regarding the transfer of patients from ambulatory to inpatient care settings. The law now mandates that physicians report to the medical board all patient transfers that result from procedures performed in the clinical office setting.)
• Avoid vicarious liability. Anesthesiologists may be held vicariously liable for the actions of nurse anesthetists or anyone else they supervise or merely give instructions to. Therefore, they should not supervise or instruct people who are not fully trained and certified, or, in their opinion, competent. Also, anesthesiologists should never agree to simultaneously supervise more cases than they can safely handle.

Conclusion
As is the case with all physicians, anesthesiologists must improve communication with patients in order to reduce the risk of malpractice suits. Getting to know patients, giving them a separate consent form and addressing their questions and concerns can go a long way toward maintaining satisfaction, even in the event of less-than-excellent outcomes.