Informed Consent
http://www.ama-assn.org/ama/pub/category/print/4608.html
Informed Consent
Informed consent is more than simply getting a patient to sign a written
consent form. It is a process of communication between a patient and
physician that results in the patient's authorization or agreement to
undergo a specific medical intervention.
In
the communications process, you, as the physician providing or
performing the treatment and/or procedure (not a delegated
representative), should disclose and discuss with your patient:
·
The
patient's diagnosis, if known;
·
The
nature and purpose of a proposed treatment or procedure;
·
The
risks and benefits of a proposed treatment or procedure;
·
Alternatives (regardless of their cost or the extent to which the
treatment options are covered by health insurance);
·
The
risks and benefits of the alternative treatment or procedure; and
·
The
risks and benefits of not receiving or undergoing a treatment or
procedure.
In
turn, your patient should have an opportunity to ask questions to elicit
a better understanding of the treatment or procedure, so that he or she
can make an informed decision to proceed or to refuse a particular
course of medical intervention.
This
communications process, or a variation thereof, is both an ethical
obligation and a legal requirement spelled out in statutes and case law
in all 50 states. (For more information about ethical obligations, see
the AMA's Code of Medical Ethics, contained in the
AMA PolicyFinder. Providing the patient relevant information has
long been a physician's ethical obligation, but the legal concept of
informed consent itself is recent.
The
first case defining informed consent appeared in the late 1950's.
Earlier consent cases were based in the tort of battery, under which
liability is imposed for unpermitted touching. Though battery claims
occasionally occur when treatment is provided without consent, most
consent cases generally center around whether the consent was
"informed", i.e., whether the patient was given sufficient information
to make a decision regarding his or her body and health care. Because
informed consent claims, unlike battery claims, are based in negligence,
they generally are covered by liability insurance.
To
protect yourself in litigation, in addition to carrying adequate
liability insurance, it is important that the communications process
itself be documented. Good documentation can serve as evidence in a
court of the law that the process indeed took place. A timely and
thorough documentation in the patient's chart by the physician providing
the treatment and/or performing the procedure can be a strong piece of
evidence that the physician engaged the patient in an appropriate
discussion. A well-designed, signed informed consent form may also be
useful, but an overly broad or highly detailed form actually can work
against you. Forms that serve mainly to satisfy all legal requirements
(stating for example that "all material risks have been explained to
me") may not preclude a patient from asserting that the actual
disclosure did not include risks that the patient unfortunately
discovered after treatment. At the other extreme, listing all of the
risks may not be wise either. A comprehensive listing will be difficult
for the patient to understand and any omission from the list will likely
be presumed undisclosed. If you are using a form that contains a list,
consider, with your attorney, inserting language indicating that the
list is not exclusive (such as "included, but not limited to") before
the list begins.
Again, this is general knowledge you can use when you ask for further
information and advice from qualified attorneys and/or other
professional consultants. If you need a referral to a qualified
attorney, please contact the
AMA Solutions ConsultingLink/Doctors Advisory Network, a national
network of pre-screened health care consultants and attorneys. When you
reach the AMA Solutions homepage, go to "PracticeLink", then to "ConsultingLink",
and then choose "Doctors Advisory Network Attorneys."
Prepared by the American Medical Association, Office of the General
Counsel, Division of Health Law
Copyright 1998 American Medical Association
Posted: September 1998
Last
updated: Mar 07, 2005
Content provided by: Office of the General Counsel
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