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Any time a patient is preparing to undergo a surgery, the practitioner
must provide an informed consent document. The informed consent document
can range anywhere from a few pages to larger than 25 pages. The
intent of the informed consent document was originally to inform
the patient about the risks associated with their procedure, to allow
the patient to ask any questions about the procedure, and to generally
make sure that the patient is mentally prepared for the procedure.
However, the current intent of the informed consent document is
to protect doctors from medial malpractice cases by making sure
the patient has “signed-off” on
what can go wrong. Fortunately for the patient, merely signing
the informed consent document does not automatically give away any
of your rights to sue.
Proving an informed consent document is
inadequate requires three standards to be applied to the case:
- Reasonable Physician Standard - What would a typical physician
say about this informed consent document? This standard allows
the physician to determine what information is appropriate
to disclose.
- Subjective Patient Standard - What would this patient need
to know and understand in order to make an informed decision?
This is the most challenging to incorporate into practice as
it requires the information to be tailored to the individual
patient.
- Reasonable Person Standard - Would the average patient (not
you) have undergone the procedure if they had been fully informed?
The most basic informed consent document should contain these
sections:
- An explanation of the medical condition for which the proposed
procedure is warranted
- An explanation of the purpose of the proposed procedure or
treatment
- A description of the proposed procedure or treatment including
known and/or anticipated side-effects
- A discussion of the known risks (including all known conditions
which might render the surgery inappropriate for a particular
patient) and benefits of the proposed procedure or treatment
and a presentation of alternatives to the procedure being contemplated
and their known side effects, risks, and benefits
- A discussion of the consequences of not accepting the proposed
procedure or treatment
- A statement that the procedure may involve risks to the patient
which are currently unforeseeable
- A statement of the individual’s right to withhold their
consent to the proposed procedure and a statement that such refusal
will not impact on the individual’s current or future right
to receive continuing health care
- A statement that the individual may withdraw consent to the
procedure at any time and that such withdrawal will not impact
on the individual’s right to receive continuing health
care.
A physician has several responsibilities in the presentation of
the informed consent document, as well. He should provide it to
you in a timely manner, and you should be given adequate time to
process the information and formulate questions. This amount of
time varies for different patients. Some may come to the office
ready for the procedure having gotten their information and answers
to their questions from the Internet or a family doctor.
Others will arrive without any knowledge of the procedure beyond
what an advertisement has told them. A key problem in this area
is doctors presenting the informed consent document just prior
to the procedure’s
scheduled time to rush the patient into signing it. First, and
foremost, a doctor’s responsibility to the patient is to
make sure that the patient fully understands what the doctor is
going to do.
Thus, the informed consent document must be present in “plain
English” avoiding most technical terminology in favor of
Layman’s terms. The explanations should be clear and concise,
and informed consent document should also be presented in the patient’s first
language. If the doctor or any of his staff is unable to speak
fluently in the patient’s primary language then a translator
should be provided. This should not be someone who knows the patient.
Since medical procedures are intended to be private and confidential
matters, an informed consent document should always be presented
in a private area where only the patient and the doctor (and possibly
a translator) are present. Presenting the informed consent document
to a patient in a public area like a lobby or cafeteria may make
the patient nervous, confused, or embarrassed.
The informed consent document should also be present by a medical
professional capable of performing the procedure. There are certain
questions a patient may have that only a qualified professional
can answer. An office worker or a nurse are probably not qualified
to present the informed consent.
Quite often if an office worker or non-qualified person presents
the informed consent document, that person will negate the informed
consent with such phrases as “just something we have to get
you to sign” or “Don’t
worry. None of this ever happens. We just have to put it in.”
Commitment to Personal Injury Clients
Personal Injury lawyer Jeffrey H. Rasansky has one mission: to
fight for the rights of personal injury victims, people just like
you. Jeff has successfully represented victims of: personal injury,
nursing home abuse, nursing home neglect, nursing home negligence,
medical malpractice, car wrecks and product liability.
Jeff Rasansky is licensed to practice before all state courts
in Texas, the United States District Courts in the Northern and
Eastern Districts of Texas and the Fifth United States Circuit
Court of Appeals.
Click here to contact
The Rasansky Law Firm.
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