Informed Consent Explained
Dr. King from Sweeney Law Firm explains Informed Consent in a 21 Alive INsight Interview.
Q Welcome back to INsight. Sweeney Law Firm joins us here and we want to talk to Dr. King about the term “informed consent” and before you get surgery there’s usually a stack of papers, like you’re buying a house, that you have to sign. I sign them all and what have I done?
A Well, unfortunately, you do have to sign all those papers, if you want medical care. Informed consent really is, it’s, whenever there’s going to be a procedure done, then the medical professional who’s doing the procedure needs to consent the patient, meaning they need to inform the patient of why they’re doing the procedure, what the alternatives are, and what the risks and benefits are of both what the physician wants to do and what the alternatives are. So, for example, an alternative could be doing nothing. So, if you’re thinking about an elective surgery, the physician needs to explain to the patient, “This is the surgery I want to perform, your alternative is either another surgery or doing nothing at all and the risks of the surgery are this, the benefits of the surgery are this, the risks of doing nothing are this, and the benefits of doing nothing are this.”
A It’s pretty complicated and it really should be that complicated because the surgeon really should be explaining all of this to the patients.
Q It feels like the time to have that conversation, though, is way before you decide to have the surgery. By that point, I’ve already decided and now I’m being informed about what the risks are?
A So, really, the informed consent should happen well before an elective surgery.
A Now, there are some surgeries that aren’t, that they are just needed no matter what.
A So, emergency situations or even urgent situations, where you really might only have a few minutes or a few hours to really think about it, but no matter what, even in those situations, the surgeon is still responsible for making sure that the patient understands what they’re having done to them and why.
Q Okay. Because it doesn’t feel like, I don’t recall and maybe, thankfully, I haven’t had many surgeries, but I don’t recall signing anything until I go in maybe to the hospital or sometimes even in the hospital bed.
A Right. And, unfortunately, I think the conversation doesn’t happen as frequently as it should and that’s actually an issue that we see quite a bit, where a patient goes in for a surgery and had no idea that there were certain risks, even though they’re signing the form because, as you pointed out, you’re signing so many forms. There’s no way the average patient is going to read those forms and even though the form might say the risks of this surgery are A, B, and C, they’re just signing it and if the physician doesn’t actually communicate that to the patient, then most patients actually won’t know the risks that they’re undergoing with this surgery.
Q Right. And, again, I think by the time I’m showing up for surgery is maybe the wrong time to tell me the risks of the surgery. Let’s just assume everything, though, is in order and I sign the paperwork and something goes wrong. Have I signed away rights?
A Not necessarily. There are complications that occur during surgeries that are, unfortunately, known, what we call known complications. These are things that even a prudent physician, a surgeon who knows what they’re doing and doing everything right, can still potentially nick an artery, for example, and cause some bleeding. These are things that we know can happen and those complications are, those are what you’re signing the consent form for, —
A — saying that you understand that those complications could happen even with the best care. However, there are plenty of times where surgeons operate and they do things that are outside the standard of care. Just because you signed an informed consent does not give the surgeon a carte blanche to do whatever they want, so they still have to comply with the standard of care. That’s where we can help review those cases and determine whether or not the surgeon acted within the standard of care.
Q Yes, so the surgeon has to live up to their standard of care and if they don’t, then you’ve got a case and sometimes if they do and things go wrong, then you may not have a case?
Q Okay. This is really a complicated issue and so this is one of those things where you want to reach out to Sweeney Law Firm and get the best advice for your particular situation because it’s obviously going to vary from case to case. Sweeneylawfirm.com is where you can go to learn more. We’ll be right back on INsight.