As a doctor, you use your knowledge, experience, and medical judgment to determine the best course of treatment for your patient. However, adult patients with decision-making capacity have the right to choose or refuse to follow your treatment plan.
Ethical and Legal Obligations of Informed Consent
The doctor has an ethical and legal duty to obtain the patient’s informed consent prior to initiating non-emergent treatment or surgery. Ethically, patients have the right to consent or refuse treatment. Legally, there are state-specific informed consent requirements. It is important to be familiar with the informed consent laws in your state.
Key Elements of the Informed Consent Process
The process of informed consent includes communication between the patient (or the patient’s surrogate if the patient lacks decision-making capacity) to include the patient’s diagnosis; the recommended course of treatment; the intended benefits of treatment; and, the possible risks and complications of the recommended treatment or procedure. This conversation should also include alternatives to the treatment (including no treatment), and risks of choosing not to follow the recommended treatment plan. The doctor should provide enough information to allow a patient to make an informed decision to consent or refuse treatment.
The Doctor’s Role in Informed Consent
The informed consent discussion is an ongoing process and should be held by the doctor ordering or providing care as the doctor is ultimately responsible for the informed consent. Additional communication with the patient should occur if the patient’s condition changes, the plan of treatment is modified, or if the patient has additional questions or concerns.
Documenting the Informed Consent Discussion
The initial informed consent discussion and all subsequent informed consent discussions should be documented in the patient’s medical record along with the patient’s understanding of the informed consent discussion. Additionally, the doctor should utilize an informed consent form during the informed consent discussion. Or alternatively, an informed refusal form could be used.
An informed consent form is an excellent tool to educate your patient about their care/treatment. It can be customized to the individual patient and the procedure or treatment being performed. You can use diagrams to help illustrate the treatment to the patient and allow them to make an informed decision regarding the treatment.
Enhancing Patient Education and Expectations
The informed consent discussion is a useful tool to educate the patient about the possibility of a complication or unexpected outcome, and to determine if the patient has realistic expectations regarding the treatment. Involving your patient in the informed consent discussion is also crucial in developing a good doctor/patient relationship and encourages the patient to be an active participant in their care.
Informed Consent and Medical Malpractice Defense
A common allegation against doctors in a medical malpractice lawsuit is that the doctor failed to fully obtain the patient’s informed consent. The patient argues that if they had been informed of the risks of the treatment, they would not have consented to the treatment and therefore, would not have been harmed. Doctors who document the informed consent discussion(s) and obtain an informed consent form are better able to defend this allegation.
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Disclaimer: The information contained on the PICA Blog does not establish a standard of care, nor does it constitute legal advice. The information is for general informational purposes only. We encourage all blog visitors to consult with their personal attorneys for legal advice, as specific legal requirements may vary from state to state. Links or references to organizations, websites, or other information is for reference use only and do not constitute the rendering of legal, financial, or other professional advice or recommendations. In the event any of the information presented conflicts with the terms and conditions of any policy of insurance offered by ProAssurance Insurance Company of America, the terms and conditions of the actual policy will apply. All information contained on the blog is subject to change.
