What is the risk of a lawsuit?

[Ignatius J]

So, if a patient dies, do you think that your having told them that they might will reduce your chance of being sued (what if you and they were the only witnesses to the informed consent discussion?)

Yes, I would be interested to see how a malpractice lawyer honed in on "Well, maybe he didn't tell the patient he would kill him." If an ASA 1 or 2 dies, usually there is quite a juicy underlying story there that may distract from that.

"It doesn't matter that I didn't know the patient was apneic. I told him he could die!"

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[Planktonmd]

For those who actually believe that the informed consent and the pre-op discussion with the patient have any protective value... I am sorry to tell you, it's a big myth!
The written consent is a fat target for the lawyer to dissect and find holes in, and they always find these holes and turn your consent into toilet paper no matter how perfect you think it is.

 

[deleted171991]

For those who actually believe that the informed consent and the pre-op discussion with the patient have any protective value... I am sorry to tell you, it's a big myth!
The written consent is a fat target for the lawyer to dissect and find holes in, and they always find these holes and turn your consent into toilet paper no matter how perfect you think it is.

That just proves that, in the US malpractice system, you are damned if you do and damned if you don't.

 

[deleted162650]

Malpractice is whatever 12 random people off the street decide it is on that particular given day.

 

[nycitygas]

You should practice in Texas like me and you won't have to worry about all of this nonsense anymore.

 

[Ignatius J]

You should practice in Texas like me and you won't have to worry about all of this nonsense anymore.

Bingo.

 

[deleted171991]

You should practice in Texas like me and you won't have to worry about all of this nonsense anymore.

Texas has caps only for non-economic damages. You can be still on hook for millions in lost income and medical care.

 

[Ignatius J]

Texas has caps only for non-economic damages. You can be still on hook for millions in lost income and medical care.

Perhaps, but the numbers say that Texas is very doc friendly. I think my malpractice insurance premiums reflect that.

 

[Ignatius J]

Here ya go:

http://www.insurancejournal.com/news/southcentral/2013/09/03/303718.htm

 

[WholeLottaGame7]

IF you dont say death/ braindeath in my opinion it is NOT informed consent. DO i say it every time? Nope.

So you anesthetize patients who have not given informed consent, by your definition?

Do you talk about positioning injuries, IV infiltrations, aspiration, emergence delirium, and medication errors as part of your informed consent? All these things can happen, as well. Do you talk about numbers for each of these possible adverse events? Do you then quiz them to assess their understanding?

Approximately 0.1% of patients are capable of giving what I would call informed consent, and most of them are doctors and nurses who work in the OR. For goodness sakes, the consent forms are intentionally written at a first grade level, because that's all that a significant chunk of patients can handle. You're telling me that someone who can barely handle reading comprehension at a first grade level can understand the complexities of surgery and anesthesia, regardless of how you explain it?

I typically talk about common surgery-specific considerations, a blanket statement about "bad things" that can happen that we can't anticipate, and tell them that I am not trying to avoid talking about anything scary and am willing to go into as much detail as they want about anything scary they're worried about, but that I'm not going to list every possible thing that could happen to them. Most people are fine with that. sometimes people ask about things like dying and I ballpark them numbers and answer their questions. If it's a sick patient having a big surgery, I adjust accordingly. I tend to warn people about things I'm worried about, because I feel like A) that's our job, and B) that's what most people want to know.



tlr version: We get consent, but we do not get informed consent, and I tailor my consent discussion to the individual patient and procedure.

 

[caligas]

Only by personally going through the process (as a defendant or expert) can you truly understand the realities of our malpractice system. After that many of the comments you read here and other places seem laughable.

 

[BLADEMDA]

Lawsuits are brought about due to bad outcome. Consents have little or nothing to do with the suit. Instead, the issue will focus on something you did or did not do which caused the injury to the plaintiff. At my hospital I am aware of about 8 lawsuits during my career and ZERO had anything to do with the consent.

 

[drrosenrosen]

So you anesthetize patients who have not given informed consent, by your definition?

Do you talk about positioning injuries, IV infiltrations, aspiration, emergence delirium, and medication errors as part of your informed consent? All these things can happen, as well. Do you talk about numbers for each of these possible adverse events? Do you then quiz them to assess their understanding?

Approximately 0.1% of patients are capable of giving what I would call informed consent, and most of them are doctors and nurses who work in the OR. For goodness sakes, the consent forms are intentionally written at a first grade level, because that's all that a significant chunk of patients can handle. You're telling me that someone who can barely handle reading comprehension at a first grade level can understand the complexities of surgery and anesthesia, regardless of how you explain it?

I typically talk about common surgery-specific considerations, a blanket statement about "bad things" that can happen that we can't anticipate, and tell them that I am not trying to avoid talking about anything scary and am willing to go into as much detail as they want about anything scary they're worried about, but that I'm not going to list every possible thing that could happen to them. Most people are fine with that. sometimes people ask about things like dying and I ballpark them numbers and answer their questions. If it's a sick patient having a big surgery, I adjust accordingly. I tend to warn people about things I'm worried about, because I feel like A) that's our job, and B) that's what most people want to know.

tlr version: We get consent, but we do not get informed consent, and I tailor my consent discussion to the individual patient and procedure.

This is exactly how I conceptualize informed consent. This may sound elitist, but I really believe it's true: most people would have to go back in a time machine and pay attention during high school chemistry and biology, then take some college science coursework, to even be able to begin to understand what is happening. I had a patient ask me what oxygen was one time.

In our modern emphasis on patient autonomy above all else, we forget that there is an enormous disparity in education between us and most of our patients, and things that are obvious and self-explanatory to us are beyond what laypeople can understand.

I do the best to make sure they understand, and go over key risks, but the ideal of a completely informed consent rarely exists in the wild.

 

[urge]

Lawsuits are brought about due to bad outcome. Consents have little or nothing to do with the suit.

This.

My focus is on not having bad outcomes.

I never go over complications unless I'm expecting one to happen. In that case, the patient needs to know. Common ones are dislodging rotten teeth, blood transfusions on anemic patients, and MIs on pts with CAD.

 

[criticalelement]

If you have a complication whatever complication it is and you did not discuss it with patient you DID NOT obtain informed consent. How hard is that to understand?

It doesnt matter if nobody does it. It doesnt matter that you didnt have time. It doesnt matter that you only care about bad outcomes. Did you talk to the patient about potential ulnar nerve neuropraxia? etc etc

 

[criticalelement]

Consents have little or nothing to do with the suit. .

It will be part of the lawsuit. They will attack the consent you obtained.. They will look to see if the patient had meds when you talked to them.

 

[BLADEMDA]

It will be part of the lawsuit. They will attack the consent you obtained.. They will look to see if the patient had meds when you talked to them.

Of course, we don't premed our patients until the consent is discussed and signed. And, of course, we discuss routine complications of what we do to the patients. But, a bad outcome is the trigger for the lawsuit and no matter what you discussed preop the plaintiff's lawyer will find an expert claiming you did something wrong or his expert would have done something differently. The consent, no matter how hard you try, won't prevent a lawsuit; you will still need to PROVE to the plaintiff's attorney that all your actions were within his definition of standard of care.

Failure to obtain consent just makes the lawsuit easy for the plaintiff vs the usual good consent which means he/she needs to pay for "expert testimony" against you.

 

[pgg]

It will be part of the lawsuit. They will attack the consent you obtained.. They will look to see if the patient had meds when you talked to them.

Man, you are really wrapped up in angst on the hopelessness of this issue. You ought to change your avatar to this guy!

While any jury of our peers may ultimately decide anything they want based on whatever information they imagine, fail to understand, or are duped into believing by a plaintiff's attorney ...

The bottom line is that malpractice requires four things: a duty to the patient, a deviation from the local standard of care, an injury, and proximate cause (injury caused by that deviation from the standard of care). Consent is a side issue. At most, after the four elements are proven, the attorneys can argue for punitive damages because you harmed the patient without properly informing him of the risk of complications. They can argue that your proven medical error is extra egregious because of your callous disregard for consent. But if you had no duty to the patient, or if there was no injury, or if you adhered to the standard of care, or if the injury wasn't caused by you, the consent isn't an issue.

Legally, a consent form is nothing more than evidence that you didn't assault the patient, so you can't be criminally charged with battery. It proves that at some point the patient said "yeah, go ahead and do that thing with the stuff and the whatever to me" and that's it.

My point is simply that if you think any kind, degree, depth, breadth, length of consent can ever be some kind of malpractice shield, you have a fundamental misunderstanding of what consent is, and what malpractice is.


Even if obtaining written consent wasn't the strictly enforced policy of every place I've ever worked, I'd still get it. Not because I think it's garlic for lawyer-vampires, but because it's the morally correct thing to do. It's disrespectful to have so little regard for the intelligence and autonomy of patients to not involve them in the decision making process by giving them as much information as they desire, in a manner they can understand, with time to digest it and ask questions to their satisfaction. That's all.

 

[Ignatius J]

It will be part of the lawsuit. They will attack the consent you obtained.. They will look to see if the patient had meds when you talked to them.

Quite a stretch.

 

[deleted171991]

Quite a stretch.

There have been precedents. If there was no written consent and the anesthesiologist downplayed or even omitted the important anesthetic risks (not to make the patient anxious), it's pretty much open and shut.

This article is for surgeons (and too me 30 seconds to find it), but anesthesia should not be any different:
http://www.aaos.org/news/aaosnow/may13/managing4.asp

The problem with informed consent claims is that they are insidious, retrospective, and likely easier to prosecute than traditional medical liability claims. Any surgical procedure carries risk, and surgeons surely discuss these risks with patients beforehand.
In hindsight, however, patients who are unhappy with their results may then turn around and say they don’t remember discussing the risk, and thereby generate an informed consent claim. And an informed consent claim cannot be defended as simply as a negligence case.

In negligence cases, physicians are, for the most part, safe if they practice good medicine. The defendant has to prove that the physician deviated from the normal standard of care and that this deviation resulted in the alleged harm.

Informed consent claims, however, are not grounded in negligence. The plaintiff does not have to prove negligence at all. In fact, the physician can have made the right diagnosis, rendered the correct treatment, and performed the most flawless surgery … and still be successfully sued.

Furthermore, the burden of proof shifts from the patient to the physician in informed consent cases. In negligence cases, the defendant has to prove which damages resulted from the negligent act. In informed consent cases, the physician must prove which damages were based on the unauthorized act, rather than on the surgery itself. Otherwise, the physician is liable for all damages flowing from the surgery.

A recent case is illustrative. A patient with back pain consented to “lumbar diskectomy and fusion with iliac crest bone graft + ‘steffe plates,’” according to the court records. The surgery was indicated and technically performed correctly. The fusion did not take, however, and the patient sued after he learned that cadaver bone was also used.

The patient claimed that the allograft was against his wishes. The physician said that no such restrictions against allograft were discussed and there was no such documentation.

Although the trial court found for the defendant, the appellate court remanded the decision. In its decision, the court stated that if the patient did, in fact, place stipulations against allograft, and the physician ignored those stipulations, the entire surgery was a battery. Consequently, unless the physician could prove otherwise, he would be liable for damages from the entire surgery (not just the portion attributed to allograft).

 

[Ignatius J]

There have been precedents. If there was no written consent and the anesthesiologist downplayed or even omitted the important anesthetic risks (not to make the patient anxious), it's pretty much open and shut.

http://www.aaos.org/news/aaosnow/may13/managing4.asp

I think it's still quite a stretch. If that's the best example we can get from the thousands upon thousands of lawsuits, I am pretty comfortable with my method of consent.

 

[deleted171991]

I think it's still quite a stretch. If that's the best example we can get from the thousands upon thousands of lawsuits, I am pretty comfortable with my method of consent.

No. That's the best example I got in 30 seconds of Googling.

The basic reasoning for requiring informed consent is that a patient has a right to understand the risks and benefits of the procedure being considered. Because most patients are not medical experts, their physician is their primary source of information in this regard. Without this information, a patient is unable to make an informed decision about undergoing the procedure. If a patient was not given information that may have caused him or her to decide against a procedure, a medical malpractice claim could be a proper course.

http://www.lawdoctors.com/Articles/...-Informed-Consent-in-Medical-Procedures.shtml

Juries in both cases found no deficiencies in the doctors' care. The physicians argued that because they adequately informed the patients of the diagnosis and proposed treatment, they should not be held liable.

The Maryland and Wisconsin high courts found that the other treatment options were equally valid under the standard of care and that juries could conclude physicians should have disclosed them to their patients. The courts said informed consent claims depended not on the doctors' actions, but on a patient's right to know.

http://www.amednews.com/article/20090824/profession/308249981/2/

 

[Ignatius J]

No. That's the best example I got in 30 seconds of Googling.


http://www.lawdoctors.com/Articles/...-Informed-Consent-in-Medical-Procedures.shtml


http://www.amednews.com/article/20090824/profession/308249981/2/

You're sending links to informed consents, which we know is debatable. Of the millions and millions of cases done every year, can you find one where an anesthesiologist was sued for not giving proper "informed consent"?

We're talking about informing patients of death, and that isn't what those laws are about.

 

[deleted126335]

Cut and pasted from sermo. Properly performed surgery. 7 figure jury award for lack of informed consent.

........................................................

Pittston man wins $1.5 million verdict for botched tonsil surgery

BY Eric Mark, staff writer Published: May 8, 2015

A Pittston restaurant owner who says a botched tonsillectomy cost him his sense of taste has won a $1.5 million medical malpractice verdict in Luzerne County court.

A jury on Thursday ruled that oral surgeon Dr. Samuel Rizzo failed to get “informed consent” from Antonio Costagliola before he performed a tonsillectomy on Costagliola on Sept. 14, 2009, according to court records.

Following a three-day civil trial this week, the jury found that Rizzo was not negligent, but awarded the money to Costagliola for “past and future embarrassment and humiliation” and “past and future loss of ability to enjoy the pleasures of life.”

Also named in the verdict is Costagliola’s wife, Tiffany Costagliola, who suffered “loss of consortium,” court records state.

The Costagliolas own and operate Napoli Pizza & Restaurant, in Pittston.

Rizzo owns the Ear, Nose, Throat Surgery medical practice in Jenkins Township, according to the civil complaint the Costagliolas filed against Rizzo and his practice.

Rizzo did not inform Costagliola of the risks involved in the tonsillectomy, which Rizzo described as “simple,” said attorney Edward Ciarimboli, who represented the Costagliolas.

Costagliola, 40, suffered nerve damage following the tonsillectomy and now has severe difficulties with his sense of taste, including a constant metallic taste in his mouth, Ciarimboli said.

The loss of taste manifested itself immediately after the surgery and has continued ever since, according to the complaint.

Costagliola also suffered from depression and anxiety, the complaint states.

Rizzo first examined Costagliola on Sept. 1, 2014, after Costagliola had recurrent bouts of tonsillitis for four or five years, according to the complaint. Rizzo noted several “very cystic tonsils” and scheduled a tonsillectomy — but did not inform Costagliola of possible risks and complications from the procedure, including loss of taste, the complaint states.

Rizzo also failed to inform Costagliola of alternate forms of treatment instead of surgery, the complaint continues.

A loss of taste is especially difficult for Costagliola since he makes his living as a chef and restaurateur, according to Ciarimboli.

“This has had a tremendous impact on his life,” Ciarimboli said.

More here:

http://citizensvoice.com/news/pittston-man-wins...

 

[pgg]

There have been precedents. If there was no written consent and the anesthesiologist downplayed or even omitted the important anesthetic risks (not to make the patient anxious), it's pretty much open and shut.

Wait, back up, the example you cited has nothing to do with that statement.

A recent case is illustrative. A patient with back pain consented to “lumbar diskectomy and fusion with iliac crest bone graft + ‘steffe plates,’” according to the court records. The surgery was indicated and technically performed correctly. The fusion did not take, however, and the patient sued after he learned that cadaver bone was also used.

The patient claimed that the allograft was against his wishes. The physician said that no such restrictions against allograft were discussed and there was no such documentation.

Although the trial court found for the defendant, the appellate court remanded the decision. In its decision, the court stated that if the patient did, in fact, place stipulations against allograft, and the physician ignored those stipulations, the entire surgery was a battery. Consequently, unless the physician could prove otherwise, he would be liable for damages from the entire surgery (not just the portion attributed to allograft).

The problem here wasn't the nature or the detail of the consent; rather, that consent wasn't obtained at all for the procedure. Not that the risks weren't sufficiently explained. The successful lawsuit and claim was that the patient didn't know what the procedure was and never agreed to it. That's a completely different issue than the other 98% of this thread, which has perseverated on how much scary detail about remote risks and unlikely (but possible) complications should be related to patients preop.

 

[Ignatius J]

Cut and pasted from sermo. Properly performed surgery. 7 figure jury award for lack of informed consent.

........................................................

Pittston man wins $1.5 million verdict for botched tonsil surgery

BY Eric Mark, staff writer Published: May 8, 2015

A Pittston restaurant owner who says a botched tonsillectomy cost him his sense of taste has won a $1.5 million medical malpractice verdict in Luzerne County court.

A jury on Thursday ruled that oral surgeon Dr. Samuel Rizzo failed to get “informed consent” from Antonio Costagliola before he performed a tonsillectomy on Costagliola on Sept. 14, 2009, according to court records.

Following a three-day civil trial this week, the jury found that Rizzo was not negligent, but awarded the money to Costagliola for “past and future embarrassment and humiliation” and “past and future loss of ability to enjoy the pleasures of life.”

Also named in the verdict is Costagliola’s wife, Tiffany Costagliola, who suffered “loss of consortium,” court records state.

The Costagliolas own and operate Napoli Pizza & Restaurant, in Pittston.

Rizzo owns the Ear, Nose, Throat Surgery medical practice in Jenkins Township, according to the civil complaint the Costagliolas filed against Rizzo and his practice.

Rizzo did not inform Costagliola of the risks involved in the tonsillectomy, which Rizzo described as “simple,” said attorney Edward Ciarimboli, who represented the Costagliolas.

Costagliola, 40, suffered nerve damage following the tonsillectomy and now has severe difficulties with his sense of taste, including a constant metallic taste in his mouth, Ciarimboli said.

The loss of taste manifested itself immediately after the surgery and has continued ever since, according to the complaint.

Costagliola also suffered from depression and anxiety, the complaint states.

Rizzo first examined Costagliola on Sept. 1, 2014, after Costagliola had recurrent bouts of tonsillitis for four or five years, according to the complaint. Rizzo noted several “very cystic tonsils” and scheduled a tonsillectomy — but did not inform Costagliola of possible risks and complications from the procedure, including loss of taste, the complaint states.

Rizzo also failed to inform Costagliola of alternate forms of treatment instead of surgery, the complaint continues.

A loss of taste is especially difficult for Costagliola since he makes his living as a chef and restaurateur, according to Ciarimboli.

“This has had a tremendous impact on his life,” Ciarimboli said.

More here:

http://citizensvoice.com/news/pittston-man-wins...

As mentioned above, this has little correlation with the principle discussion. There have been hundreds of millions of anesthetics given in the last decade, yet there still seems to be not one case of a lawsuit towards an anesthesiologists for not explaining that a patient could suffer death/permanent organ or brain damage. I am open if that data exists, but again, even one or two examples is akin to getting struck by lightning. I suspect very few anesthesiologists actually tell the patient they could die. None in my group do that I've overheard.

 

[urge]

How do you end up with no taste sensation after tonsillectomy? Isn't most taste actually smell?

 

[pgg]

How do you end up with no taste sensation after tonsillectomy? Isn't most taste actually smell?

Probably a glossopharyngeal nerve injury. It gets the posterior 1/3 of the tongue.

Most taste is via chorda tympani which travels with the facial nerve including that weird detour across the tympanic membrane but I don't see how a tonsillectomy would damage that.

 

[deleted162650]

Probably a glossopharyngeal nerve injury. It gets the posterior 1/3 of the tongue.

Most taste is via chorda tympani which travels with the facial nerve including that weird detour across the tympanic membrane but I don't see how a tonsillectomy would damage that.

That reminds me of one of my favorite jokes from med school:

What do cranial nerve 7 and the vagina have in common?



Both supply taste to the anterior 2/3 of the tongue.

 

[dhb]

How do you end up with no taste sensation after tonsillectomy? Isn't most taste actually smell?

Costagliola suing Rizzo? i smell fraud