Documenting one’s informed consent is a main tenet of dental risk management. Siliezar v East Jefferson General Hospital , 894 So.2d 373 (La. App. 5 Cir. 2005), presents us with a situation in which the informed consent was obtained verbally, and whether that method of obtaining the patient’s consent was acceptable. The plaintiff sought treatment at the emergency room for pain in her thumb and forefinger. She was given a splint and released. A week later she followed up with a physician. The doctor’s diagnosis was sprain and stenosing tenosynovitis. He told the patient to continue wearing the splint, prescribed anti-inflammatory medication, and told her to return in 1 week. The patient did not respond to this therapy, so he performed surgery to allow the thumb to move more freely. When the patient still did not improve, she was referred to a hand specialist, who diagnosed scar tissue from the original surgery, and then proceeded to perform additional surgery that ultimately resulted in only a 90% cure. The plaintiff instituted a lawsuit claiming that the first surgery was unnecessary because conservative therapy should have been the preferred mode of treatment and that the first surgeon failed to obtain her written informed consent to the surgery. The trial court found for the defendant. This appeal ensued.
Essentially, the plaintiff was claiming, first, that the doctor breached hospital policy by failing to obtain written informed consent; and, second, the defendant’s claim that the plaintiff gave verbal informed consent was inadequate as a matter of law. The statute governing medical malpractice actions in Louisiana is LSA R.S. 9:2794. It notes that to succeed a plaintiff must prove:
The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
The plaintiff testified at trial that the defendant told her to continue wearing the splint and take the medication he was prescribing; if that didn’t work, he would have to give her a shot in the area. If the shot didn’t work, she would then require surgery. When she returned for the follow-up and said there had been no improvement, she thought she was going to get the cortisone shot so she turned her head because she didn’t want to witness the injection. When she finally looked back, the doctor had made an incision and was performing the surgery. She stated that no one told her she was going to have surgery, and she certainly did not consent to the procedure. The defendant stated that the plaintiff declined the cortisone shot, for whatever reason did not sign the consent form he left with her, but consented to the surgery.
The assisting nurse was in the next room and testified that there was no explanation for why the consent form was not signed, but regardless, she heard the doctor tell the plaintiff about the surgery. She also testified that earlier, she had placed the plaintiff’s arm in an arm board, set out all the surgical instruments, and cleaned and prepped the arm; at no time did the plaintiff ask what was happening, say she didn’t want surgery, or stop the preop preparations.
The experts disagreed on whether performing the surgery before trying the cortisone injection breached the standard of care; this was to be expected. As to the informed consent claim, this was governed in part by LSA R.S. 40:1299.40 that states:
(1) Notwithstanding any other law to the contrary, written consent to medical treatment means a handwritten consent to any medical or surgical procedure or course of procedures which: sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, of disfiguring scars associated with such procedure or procedures; acknowledges that such disclosure of information has been made and that all questions asked about the procedure or procedures have been answered in a satisfactory manner; and is signed by the patient for whom the procedure is to be performed, or if the patient for any reason lacks legal capacity to consent by a person who has legal authority to consent on behalf of such patient in such circumstances. Such consent shall be presumed to be valid and effective, in the absence of proof that execution of the consent was induced by misrepresentation of material facts.
Where consent to medical treatment from a patient, or from a person authorized by law to consent to medical treatment for such patient, is secured other than in accordance with Subsection A above, the explanation to the patient or to the person consenting for such patient shall include the matters set forth in Paragraph (1) of Subsection A above, and an opportunity shall be afforded for asking questions concerning the procedures to be performed which shall be answered in a satisfactory manner. Such consent shall be valid and effective and is subject to proof according to the rules of evidence in ordinary cases.
The appellate court noted that one’s consent does not have to be written and that the defendant’s testimony indicated that he performed all the requirements noted in the statute. In addition, the nurse testified to roughly the same thing. The appellate court ruled that the trial court did not abuse its discretion in believing 1 party over the other and upheld the trial court’s verdict for the defendant.
First, it is important to note that various states have codified rules and regulations governing informed consent; in many venues, it must be written. This is a states rights issue, so you had best be familiar with the laws of the states in which you practice. Second, consent can be given in many ways. From a risk management perspective, view it as standing on a ladder. The higher the rung you stand on, the greater your protection.
On the highest rung, we have written consent. This method involves using one of many types of forms that describe the required information, and the patient then attests to having acquired the information and subsequently granting consent by signing the form. Although a form is the traditional means of obtaining written consent, the information in it can be delivered through a variety of media such as video or audiotapes, pamphlets, booklets, drawings, and so on; after the patient has listened to or viewed the medium, an attestation form of some type is then signed. The information can also be delivered by a consultation with any number of people such as the doctor, an assistant, a treatment coordinator, or a nurse. Again, after receiving the required information, the patient will sign a form acknowledging this fact. Written consent is preferred when the risks associated with the proposed procedure are great, the procedure itself is complicated, the danger of negative sequellae or outcome is significant, if general anesthesia or conscious sedation is to be used, or if significant surgical intervention is part of the procedure.
The bottom line is that in some manner the patient must be informed about the nature of the problem, the recommended treatment, any viable alternative treatment modalities, the risks, compromises, and limitations associated with each of the viable treatment alternatives, how long treatment will take and how much it will cost, any necessary secondary treatment that may be required such as implants, bridges, permanent retention, and allowed to ask and have answered any questions. All of this must be done in a noncoerced manner and in a language the patient can both understand and comprehend. The writing is a memorialization that the exchange of information occurred and that the granting of permission to invade the patient’s bodily integrity was freely given. Why a writing for orthodontics? Because we do, on very rare occasion, have the potential to encounter severe negative consequences; think root resorption of all 4 maxillary anterior teeth.
The next rung on this risk management ladder would be verbal consent. This is usually used when the procedure recommended is fairly routine, uncomplicated, easily understandable, the risks of negative consequences are small, or the patient has undergone the procedure or treatment many times before. Here you still need to have an exchange of information, but what is being disclosed is usually innocuous and does not raise alarm. One can choose to document that a discussion about such and such was had, but without many of the details and without the necessity of the patient’s signature.
Continuing to climb down this ladder, we have implied consent. In this situation, one’s consent can be implied by one’s actions such as merely showing up for an examination or consultation, or acquiescing to some form of cursory treatment. For example, today a brother and sister, ages 12 and 10, respectively, came in for an initial screening appointment. In our clinic, this is a quick look-see to determine if the patients are ready and if they are, we reschedule for comprehensive records. Hey, it’s the way we do it. Anyway, the adult who brought them in was none other than the babysitter. No mom, no dad, no legal guardian. We determined that we had implied consent to do a screening. Why? Mom had called to make the appointment, the kids were there, and they knew why as did the babysitter. The only treatment rendered was an observation. No recommendation other than records was made. We were sure we had implied consent.
Finally, there is consent by proxy, which can take many forms. We see this when a parent consents for a child, or a judge for a ward of the court.
The problem, of course, is that we live in a litigious society. It is what it is. We do the best that we can, and most of the time things turn out okay. Occasionally, things go wrong and when they do, patients often want to sue. But what if we didn’t do anything wrong? Sometimes you do the right things, exercise your best judgment, and still it seems as if Mother Nature has it in for you. Well, there is no negligence, so now what? Now what is a claim for lack of informed consent? The logic goes something like this. The plaintiff will claim that:
You told me to have this done. I didn’t have to have it done, but you recommended that I do it. You didn’t tell me about the bad stuff that could happen if I did have it done. Since you didn’t tell me, I went ahead and did have it done. If you had told me about the bad stuff I never would have had it done, but since you didn’t tell me I did have it done. So since I wouldn’t have done it if I had been informed, it’s your fault I suffered the injury because you didn’t tell me.
So there it is. I ask you, how do you want to prove that you told the patient about the bad stuff, by implication, verbosity, or a documented memorialization? I guess the answer to that question is what rung of the ladder are you comfortable standing on. Don’t like heights? Hmm.