Malpractice - Case Reviews, Q&A, whatever else!

[Rcola23]

Hi everyone -

Per request, I have started a new thread regarding Malpractice. As I've said before, I own an Insurance & Risk Management firm that specializes in MPLI (Medical Professional Liability Insurance aka Malpractice) & Risk Prevention for Physicians, Physician Groups and Hospitals/Clinics. We handle anything from a single Physician private practice, to a large regional hospital group.

Feel free to DM, or ask openly, any questions or concerns you may have and I will be glad to help as I am able!

Let's open the thread with another Malpractice case study!

In this Malpractice Claim Review:
A critical test report did not get communicated to a physician.


SPECIALTY
Anesthesiology and Surgery
ALLEGATION
Failure to Diagnose Acute Myocardial Infarction (AMI)
RISK MANAGEMENT FOCUS
Follow Up on Critical Test Results


Facts of Case
A 47-year-old paraplegic man came to the emergency department (ED) of a hospital complaining of a fever and abdominal pain in the right upper quadrant (RUQ) that was radiating to his back. He also said that he had been having a loss of appetite, nausea and dark urine for the past several days. A urinalysis showed positive nitrates, bacteria and white blood cells. The ED physician prescribed Tequin and admitted the man for observation with a differential diagnosis of peptic ulcer disease, pyelonephritis, cholelithiasis, gastritis or pancreatitis. An ultrasound of the abdomen revealed a distended gall bladder with mild thickening of the wall. Throughout the night, the patient continued to complain of severe RUQ pain and had several episodes of oxygen saturation levels dropping below 84 percent. The attending physician ordered a transfer to a tertiary medical center.

When he arrived in the ED of the tertiary care center, the physicians decided to proceed with a cholecystectomy on a semi-urgent basis. An anesthesiology resident obtained a preoperative history and physical and ordered an electrocardiogram (EKG), which was done in the ED. The EKG report showed a probable inferior myocardial infarction. The anesthesiology resident who ordered the EKG did not see the report. The patient was sent to surgery.

During surgery, a second anesthesiology resident relieved the first resident. Soon the patient developed significant hypotension and hypoxemia. The surgeon completed the cholecystectomy and despite IV fluids, the patient did not respond. The surgeon ordered a cardiology consult and an EKG. The second EKG showed an acute myocardial infarction. The patient went for an emergency angiography in the cardiac cath lab. The angiography showed a complete occlusion of the left circumflex coronary artery. Attempts to open the artery were unsuccessful. The patient developed recurrent hypotension and arrhythmias and despite resuscitation died in the cath lab. An autopsy revealed an acute myocardial infarction secondary to severe coronary artery disease, as well as severe pyelonephritis, chronic cystitis and chronic cholecystitis.

The family filed a malpractice claim against the hospital, the surgeon, the anesthesiology residents and the supervising anesthesiologist alleging failure to diagnose and timely treat an acute myocardial infarction.



Disposition of Case
The case settled for $500,000 against the hospital, the first anesthesiology resident and the supervising anesthesiologist.



Risk Management Perspective
The experts were critical of the anesthesiology resident for clearing the patient for surgery without reviewing the results of the EKG, and the supervising anesthesiologist for signing off on the chart without reviewing the EKG results before surgery. The hospital was criticized because a critical test report did not get red flagged for communication with the ordering physician. Defending this claim was difficult, because of the finger pointing and blaming after the patient’s death. Multiple providers were involved in this patient’s care, and each felt the other had more responsibility for the patient. The providers also felt the hospital staff should have done more to alert the ordering provider of the abnormal EKG report.

Effective communication is the key to patient safety, especially when multiple providers are involved in complex patient care. Failure to timely respond to critical test reports is a frequent allegation in malpractice claims.

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[Gaseous Clay]

This is a good example of where it would have been more defensible to NOT order a pre-op EKG than to order one and not follow up with the results or do anything about those results. According to the ACC-AHA guidelines, there is no indication for an EKG here. Unfortunately for the patient, he had severe RUQ pain (probably substernal on top of that) with acute cholecystitis and it likely swayed many of the practitioners from really exploring a cardiac source. Additionally, he is a relatively young 47 with no apparent cardiac history (were there other risk factors such as smoking, family history, HTN, DM, etc?). Were troponins ever drawn by the ED?

I'd also like to see the pre-op EKG. Were there actually ST elevations and reciprocal depression or Q waves?

Tough case and why it is important to put the breaks on an over eager surgeon who has tunnel vision. But I am sure the surgeon was pressing forward hard with talk of cholangitis and impending sepsis.

 

[chocomorsel]

Keep them coming. I am loving this thread and the previous cases.
@Gaseous Clay, I agree about the EKG part. But I can say that I have ordered tests in the past and gotten distracted and forgotten. Only to remember much later, even after I left. Of course though it would have been better to not have that on the record in this case.

 

[Morzh]

What, exactly, did the initial ECG look like?

Did the interpreting cardiologist read it as "probable inferior infarct", or did the machine spit that out? There's a big difference between (1) some equivocal upsloping, concave "ST elevation vs early repolarization" or an isolated Q wave in one of the inferior leads, and (2) deep Q waves with TWIs and/or mega-obvious ST elevations in contiguous leads. Yet both could result in the machine interpreting it was "probable inferior infarct".

Also would like to know more details about the patient's complaints, other co-morbidities, and especially other labs drawn in the ED.

 

[GlowInTheDark]

Was there any sort of workup for the oxygen desats prior to transfer? How about EKGs or other labs at transferring hospital?

 

[GlowInTheDark]

Keep them coming. I am loving this thread and the previous cases.
@Gaseous Clay, I agree about the EKG part. But I can say that I have ordered tests in the past and gotten distracted and forgotten. Only to remember much later, even after I left. Of course though it would have been better to not have that on the record in this case.

Sounds like a possible systems issue too.

In my shop the nurse has to physically hand the EKG to you or page you to tell you it has been uploaded for viewing.

 

[anbuitachi]

I am impressed. Gatifloxacin? I've never seen that used! But anyway, there's really no reason to order an EKG in this young 47 yr old
Furthermore, i feel like anesthesiology residents today are POORLY trained in EKG reading. We read EKGs on a daily basis, yet we can barely read one. Honestly a lot of machine reads say Probable MI in whatever lead, but almost none of it is real. I'm sure everyone can recognize giant STEs and STDs and the T wave inversions but it's really easy to miss the more subtle ones. We dont carry calipers either. I'm guessing since no one caught it pre op or intraop, it wasn't that obvious. But to die from just a circumflex occlusion is rough..

 

[Southpaw]

No one wants to pump the brakes on a surgical patient. Full steam ahead! Bad outcome? Start the finger pointing! Such a shame our medical system....

 

[bigdan]

I wouldn't dismiss an EKG order out-of-hand on this patient. Yes, 47 years old, but also a paraplegic. Big difference between the 47 y/o athlete who had a catastrophic event while rock climbing and the guy who is a congenital paraplegic with multiple other medical issues that could lead to deranged physiology. Other than being 47, the only other info we have is that he has a risk factor for poor functional status (depending on his degree of paraplegia) and he presented with what could be considered an angina equivalent.

I understand hindsight is 20/20, and it's easy for me to sit and type on the couch, but 1) I'm surprised he didn't get chest pain rule out and CT scan at the jump, 2) we know literally nothing about the contributing medical hx, and 3) I could see where an anesthesiology resident could see this patient and think an EKG might provide some useful info. I don't know that I would have ordered one per se, but I don't think it's a crazy idea.

 

[dannyboy1]

This is a good example of where it would have been more defensible to NOT order a pre-op EKG than to order one and not follow up with the results or do anything about those results. According to the ACC-AHA guidelines, there is no indication for an EKG here. Unfortunately for the patient, he had severe RUQ pain (probably substernal on top of that) with acute cholecystitis and it likely swayed many of the practitioners from really exploring a cardiac source. Additionally, he is a relatively young 47 with no apparent cardiac history (were there other risk factors such as smoking, family history, HTN, DM, etc?). Were troponins ever drawn by the ED?

I'd also like to see the pre-op EKG. Were there actually ST elevations and reciprocal depression or Q waves?

Tough case and why it is important to put the breaks on an over eager surgeon who has tunnel vision. But I am sure the surgeon was pressing forward hard with talk of cholangitis and impending sepsis.

Where I work pretty much everyone from the ED who is going for surgery has an ekg ordered almost reflexively. We don’t get the choice not to order one. Could definitely see something like this falling through the cracks. Diagnosis is cholecystitis so you expect the patient to be in pain...47 y/o so not that suspicious for CAD...Unless it was a slam dunk horrible ekg I could see most docs doing this case. Goes to show that malpractice cases are as much about bad luck as it is about bad practice

 

[anbuitachi]

I wouldn't dismiss an EKG order out-of-hand on this patient. Yes, 47 years old, but also a paraplegic. Big difference between the 47 y/o athlete who had a catastrophic event while rock climbing and the guy who is a congenital paraplegic with multiple other medical issues that could lead to deranged physiology. Other than being 47, the only other info we have is that he has a risk factor for poor functional status (depending on his degree of paraplegia) and he presented with what could be considered an angina equivalent.

I understand hindsight is 20/20, and it's easy for me to sit and type on the couch, but 1) I'm surprised he didn't get chest pain rule out and CT scan at the jump, 3) we know literally nothing about the contributing medical hx, and 3) I could see where an anesthesiology resident could see this patient and think an EKG might provide some useful info. I don't know that I would have ordered one per se, but I don't think it's a crazy idea.

The thing is how would an EKG change your management for this lap chole case. Obviously if you are suspecting an acute MI in this patient, getting an EKG and having it show MI would. But how many of us would think, this 47yo may be having an acute MI, lets order an EKG. Otherwise if his EKG didn't show a MI, how would it change your management? Would you cancel the case if theres a LBBB? Would you put an arterial line?

 

[Robotic Wis-Hipple]

“If you don’t take a temperature, you can’t find a fever”

I think this case gets done in 70% of hospitals unless the EKG was intern level ST elevations. I’d bet it was nonspecific changes or small TWI’s etc that got machine read as possible MI, and without known cardiac risk factors, prior EKGs, etc and with ED docs and Surgeons announcing an emergent surgical condition I don’t see most Anesthesiologists/residents calling a hard stop for more consideration. And I agree with BigDan, I can see a lot of people checking an EKG based on unknown functional status, but I’m amazed the ED didn’t reflex order an EKG to begin with, especially the second ED or the first hospital prior to transfer.

I’d also imagine a total circ lesion would show up as something on the intraop monitor as well.

 

[caligas]

Tough case, could have burned any of us.

 

[DrOwnage]

Why didn't the ED doc share any of the responsibility? Most of the time they're basically a glorified triage nurse/EKG ordering machine/reader.

 

[T-burglar]

I too would love to see that ECG. And the ED doc interpretation as well. Consultant level ECG interpretation is as hard won a skill as consultant level TEE and it is a rare anesthesia resident or even attending that has it. I would love to see what was missed. Circumflex occlusion is one of the easiest one to miss, but the findings are there if you look. The problem with ACS is it is very dynamic, and sometimes trops and SERIAL ECGs during and without chest pain are needed to make the diagnosis.

These situations where you are rushing to the OR for an emergency surgeryare the perfect setup for missing an MI because you don’t have time to do serial ECGs and try them on nitro to see if the pain is responsive.

 

[T-burglar]

I also take issue with intentionally not ordering ECGs because you don’t know how to read one and hoping you skate by with a small MI that nobody notices . 47 is too young for an MI? This is America circa 2018.

 

[anbuitachi]

I also take issue with intentionally not ordering ECGs because you don’t know how to read one and hoping you skate by with a small MI that nobody notices . 47 is too young for an MI? This is America circa 2018.

Well I don't think anyone is saying to not get an EKG because you don't know how to read it. But don't order tests if you aren't going to look at it or if you don't think it's needed. Just a waste of dollars

 

[dannyboy1]

Well I don't think anyone is saying to not get an EKG because you don't know how to read it. But don't order tests if you aren't going to look at it or if you don't think it's needed. Just a waste of dollars

It could just as easily be argued that it is negligence not ordering an EKG in a bed bound 47 y/o (not that young) with upper abdominal pain. What likely happened is that the ekg was done but not read/examined closely. Could easily see this happening on call. You get a notification from charge nurse that someone booked a lap chole, you glance at the electronic chart and see that it is a 47 y/o. Maybe no risk factors for CAD. It’s a busy call. You tell the resident to page me when you are ready to induce....
Obviously not ideal but it happens all the time.

 

[Gaseous Clay]

A few points:
1) Ordering an EKG in this patient is NOT RECOMMENDED according to the ACC-AHA guidelines BUT I would never fault anyone for doing so in this patient. If you really asked, I am sure he also has chest pain, though the RUQ is probably hurting him more. He also may have a few risk factors that have not been mentioned in the original post. Lastly, as someone else pointed out, you cannot assess his functional metabolic capacity since he is a paraplegic. In this case, I would find it reasonable to order one but it brings me to my next point.

2) If you order something, follow up on it. If I order an EKG or iSTAT pre-op, you're darn sure I'm checking up on it. Now if I order an EKG on a patient I'm seeing for tomorrow, more than likely I won't follow up on it but honestly that's on the team for the next day.

3) This is a case of bad luck and can certainly happen to anyone. I agree as others have stated, the EKG was likely non-specific but if you magnify it in court with some random "expert" cardiologist, I'm sure they would blast you for missing something. T wave inversions? Yea, that's certainly a sign for ischemia but in this day in age, seems like 10% of my patients have some sort of inversion or NSST change. I highly doubt this guy had rip roaring ST elevations with reciprocal depression but maybe he did.

4) Unfortunately when complications and M&Ms happen, fingers start pointing and you'll find out your "friend" isn't your friend anymore. This could fall on anyone from the ED doc, to the surgeon, to the anesthesiologist, to the nurse who obtained the original EKG. A lot of unfortunate events unfolded that led to a bad outcome.

5) AGAIN, it is ok to speak with your surgeon and delay/cancel a case. A lap chole is RARELY if ever a true emergency. Am I an obstructionist? Absolutely not, but we've all been there with the patient tetering on the edge of instability and have had to have the tough conversations with the surgical team and family members/patient.

I like these malpractice cases because it reminds us of so many important points and that also a malpractice case can often be a wrong place, wrong time situation. For the most part, we try to do a good job and the right thing and sometimes it just leads to malpractice cases and lawyers.

 

[Gaseous Clay]

It could just as easily be argued that it is negligence not ordering an EKG in a bed bound 47 y/o (not that young) with upper abdominal pain. What likely happened is that the ekg was done but not read/examined closely. Could easily see this happening on call. You get a notification from charge nurse that someone booked a lap chole, you glance at the electronic chart and see that it is a 47 y/o. Maybe no risk factors for CAD. It’s a busy call. You tell the resident to page me when you are ready to induce....
Obviously not ideal but it happens all the time.

Negligence??? Be careful what terms you start throwing around. Do you know your ACC-AHA guidelines? Are you a med student or resident or attending? Do you order an EKG on all your paraplegics with RUQ/abdominal pain because that's the STANDARD OF CARE?

 

[dannyboy1]

Negligence??? Be careful what terms you start throwing around. Do you know your ACC-AHA guidelines? Are you a med student or resident or attending? Do you order an EKG on all your paraplegics with RUQ/abdominal pain because that's the STANDARD OF CARE?

My point was that this guy ended up dying in the Cath Lab of an acute MI. for those that think that not ordering an EKG might have saved you, I was pointing out that the patients lawyer might have reviewed the chart and asked why a patient with epi gastric pain did not have a cardiac source ruled out (question should be asked of the ED doc as well as the surgeon/anesthesiologist). Remember this is not an asymptomatic patient presenting in preop clinic. This is a patient with pain that could be attributed to a cardiac source. When this patient dies on the Cath Lab table you can bet your @$$ that the lawyer will be looking for an ekg

 

[Gaseous Clay]

My point was that this guy ended up dying in the Cath Lab of an acute MI. for those that think that not ordering an EKG might have saved you, I was pointing out that the patients lawyer might have reviewed the chart and asked why a patient with epi gastric pain did not have a cardiac source ruled out (question should be asked of the ED doc as well as the surgeon/anesthesiologist). Remember this is not an asymptomatic patient presenting in preop clinic. This is a patient with pain that could be attributed to a cardiac source. When this patient dies on the Cath Lab table you can bet your @$$ that the lawyer will be looking for an ekg

My bad, I misinterpreted your statement as in you thought it is negligence for not ordering an EKG on this patient. I do agree with hindsight perfect vision one can easily argue that a cardiac source should have been ruled out before proceeding with this non-emergent surgery. Whenever I feel that a case is not an "emergency" but the surgeon claims it is, I make sure they clearly document that in their H&P while I also document our discussion and that we are proceeding even though the patient may not be optimized. Would that save my a** in court? Possibly not (maybe OP can shed some light on that), but when a surgeon deems something "emergent," that is the best I can do.

 

[timgasman]

thank you for posting this. In such a situation do the providers have a say in the settlement?

 

[Rcola23]

thank you for posting this. In such a situation do the providers have a say in the settlement?

Great question - that depends on the individual malpractice policy. Some have a consent to settle clause and some do not. I would strongly recommend that you check your policy and, if you don't have it, get it added or find a new policy that offers it.

 

[Rcola23]

I was privately asked by a member for some informed consent tips, so I thought you all might like this claim review. If anyone would like more information on how to help protect yourself in regards to Informed Consent, please DM me and I would be happy to share a document with you.

In this Malpractice Claim Review:
A general surgeon failed to obtain adequate informed consent.


SPECIALTY
General Surgery
ALLEGATION
Failure to obtain Informed Consent
Failure to obtain Consent to remove ovaries
RISK MANAGEMENT FOCUS
Informed Consent
Communication with the patient


Facts of Case
A 49-year-old woman with a long-standing history of multiple complaints involving pelvic pain, menstrual cramping, heavy clotting with her periods, dyspareunia, and urinary incontinence was referred by her family physician to a general surgeon for a probable hysterectomy. She had two surgeries in the past for the urinary incontinence.

The surgeon felt she had a prolapsed uterus and rectocele. He advised her that a laparoscopic assisted vaginal hysterectomy would be the best procedure to resolve her problems. The surgeon discussed the risks of infection, bleeding, and death. During the informed consent discussion, the patient was very adamant that she wanted to keep her ovaries. The surgeon told her he would leave them if they were functional. She then consented to the surgery. There was no documentation in the medical record about the removal of the ovaries and little documentation regarding the informed consent discussion.

During the surgery, the physician noted the left ovarian complex had cystic changes and adhesions. The right ovary also had adhesions. He removed the ovaries believing they were nonfunctional and that there was a possibility of carcinoma. The pathology report indicated multiple benign ovarian cysts and endometriosis. The patient was told about the removal of her ovaries at the time of discharge when the surgeon indicated that the nurse would be discussing hormone replacement therapy with her.

Postoperatively, the patient complained of numerous physical (bowel and bladder problems) and emotional problems (inability to have an orgasm during sex) all which she related to the hysterectomy. She was also very angry about the removal of her ovaries and felt she "had been butchered."

She filed a malpractice claim alleging the surgeon did not have her consent to remove her ovaries and that she was not informed of all the risks of hysterectomy, particularly relating to the probability of nerve damage.



Disposition of Case
This case was taken to trial. The jury found there was no "battery" for removal of the ovaries without consent stating that the ovaries were diseased and the standard of care was to remove them. However, the jury found on behalf of the patient for the lack of informed consent for the hysterectomy and awarded damages of several hundred thousand dollars.



Risk Management Perspective
Informed consent is the result of a communication process during which the physician educates the patient about the significant risks, benefits and alternatives to a proposed medical treatment. The role of the patient in the process is to ask any questions they have, make sure they understand the information given, and either give their consent or decline the treatment.

The process of educating the patient -- using words they can understand and spending time answering all their questions -- is integral to informed consent. Unfortunately, many physicians view obtaining informed consent as simply signing a form. Research shows the average informed consent form is written at a graduate school level, yet it is estimated that 90 million Americans read at a grade 5 level or below.


In order to be successful in a malpractice case alleging lack of Informed Consent, the plaintiff/patient must prove:

1. The physician knew or should have known of the risk involved in the procedure;
2. The risk was significant;
3. The physician failed to discuss it with the patient;
4. A reasonable person in the patient's position would not have consented to the treatment if that risk had been explained to them; and
5. The risk in question actually arose and caused the damage claimed by the plaintiff.

The patient in this case felt she was rushed into surgery and wasn't adequately informed of all the risks of hysterectomy, particularly of the possibility of nerve damage. She alleged that the hysterectomy caused nerve damage that resulted in her bowel, bladder and sexual dysfunction, and if she had known of this risk she would not have consented to the surgery. The jury determined that a "reasonable" patient would want to know of this risk before consenting to surgery.

The poor communication between the patient and the surgeon ultimately lead to her decision to sue. She was angry about the removal of her ovaries; the time delay in telling her about their removal only fueled her anger. She was angry that the physician did not spend more time educating her about the risks of hysterectomy and did not offer any alternative treatments. She testified she was just "given some brochure" to read and a form to sign. The lack of documentation about the informed consent process hampered the physician's defense.



Risk Management Tips

• Educate patients about the risks, benefits, and alternatives to a proposed procedure. Use simple language -- words they can understand.
• Ask the patient to repeat back to you what they understood about the proposed treatment, alternatives and benefits.
• Do not rely on a printed form or brochure alone to provide the patient with information. You must actually discuss the proposed treatment and allow the patient time to ask questions.
• Document the discussion, indicating that you discussed the major and material risks and that the patient's questions were answered to their satisfaction.
• Do not delegate the task of obtaining informed consent to your staff. You, as the physician, are held responsible for carrying out this duty.

 

[anbuitachi]

I was privately asked by a member for some informed consent tips, so I thought you all might like this claim review. If anyone would like more information on how to help protect yourself in regards to Informed Consent, please DM me and I would be happy to share a document with you.

In this Malpractice Claim Review:
A general surgeon failed to obtain adequate informed consent.


SPECIALTY
General Surgery
ALLEGATION
Failure to obtain Informed Consent
Failure to obtain Consent to remove ovaries
RISK MANAGEMENT FOCUS
Informed Consent
Communication with the patient


Facts of Case
A 49-year-old woman with a long-standing history of multiple complaints involving pelvic pain, menstrual cramping, heavy clotting with her periods, dyspareunia, and urinary incontinence was referred by her family physician to a general surgeon for a probable hysterectomy. She had two surgeries in the past for the urinary incontinence.

The surgeon felt she had a prolapsed uterus and rectocele. He advised her that a laparoscopic assisted vaginal hysterectomy would be the best procedure to resolve her problems. The surgeon discussed the risks of infection, bleeding, and death. During the informed consent discussion, the patient was very adamant that she wanted to keep her ovaries. The surgeon told her he would leave them if they were functional. She then consented to the surgery. There was no documentation in the medical record about the removal of the ovaries and little documentation regarding the informed consent discussion.

During the surgery, the physician noted the left ovarian complex had cystic changes and adhesions. The right ovary also had adhesions. He removed the ovaries believing they were nonfunctional and that there was a possibility of carcinoma. The pathology report indicated multiple benign ovarian cysts and endometriosis. The patient was told about the removal of her ovaries at the time of discharge when the surgeon indicated that the nurse would be discussing hormone replacement therapy with her.

Postoperatively, the patient complained of numerous physical (bowel and bladder problems) and emotional problems (inability to have an orgasm during sex) all which she related to the hysterectomy. She was also very angry about the removal of her ovaries and felt she "had been butchered."

She filed a malpractice claim alleging the surgeon did not have her consent to remove her ovaries and that she was not informed of all the risks of hysterectomy, particularly relating to the probability of nerve damage.



Disposition of Case
This case was taken to trial. The jury found there was no "battery" for removal of the ovaries without consent stating that the ovaries were diseased and the standard of care was to remove them. However, the jury found on behalf of the patient for the lack of informed consent for the hysterectomy and awarded damages of several hundred thousand dollars.



Risk Management Perspective
Informed consent is the result of a communication process during which the physician educates the patient about the significant risks, benefits and alternatives to a proposed medical treatment. The role of the patient in the process is to ask any questions they have, make sure they understand the information given, and either give their consent or decline the treatment.

The process of educating the patient -- using words they can understand and spending time answering all their questions -- is integral to informed consent. Unfortunately, many physicians view obtaining informed consent as simply signing a form. Research shows the average informed consent form is written at a graduate school level, yet it is estimated that 90 million Americans read at a grade 5 level or below.


In order to be successful in a malpractice case alleging lack of Informed Consent, the plaintiff/patient must prove:

1. The physician knew or should have known of the risk involved in the procedure;
2. The risk was significant;
3. The physician failed to discuss it with the patient;
4. A reasonable person in the patient's position would not have consented to the treatment if that risk had been explained to them; and
5. The risk in question actually arose and caused the damage claimed by the plaintiff.

The patient in this case felt she was rushed into surgery and wasn't adequately informed of all the risks of hysterectomy, particularly of the possibility of nerve damage. She alleged that the hysterectomy caused nerve damage that resulted in her bowel, bladder and sexual dysfunction, and if she had known of this risk she would not have consented to the surgery. The jury determined that a "reasonable" patient would want to know of this risk before consenting to surgery.

The poor communication between the patient and the surgeon ultimately lead to her decision to sue. She was angry about the removal of her ovaries; the time delay in telling her about their removal only fueled her anger. She was angry that the physician did not spend more time educating her about the risks of hysterectomy and did not offer any alternative treatments. She testified she was just "given some brochure" to read and a form to sign. The lack of documentation about the informed consent process hampered the physician's defense.



Risk Management Tips

• Educate patients about the risks, benefits, and alternatives to a proposed procedure. Use simple language -- words they can understand.
• Ask the patient to repeat back to you what they understood about the proposed treatment, alternatives and benefits.
• Do not rely on a printed form or brochure alone to provide the patient with information. You must actually discuss the proposed treatment and allow the patient time to ask questions.
• Document the discussion, indicating that you discussed the major and material risks and that the patient's questions were answered to their satisfaction.
• Do not delegate the task of obtaining informed consent to your staff. You, as the physician, are held responsible for carrying out this duty.

Ridiculous. It states all of the 5 must be proven. How did they prove number 4? A reasonable person would not have consented if they knew there was a risk of nerve damage? Really? Just lying on a table has a risk of nerve damage...

 

[PainDrain]

I was privately asked by a member for some informed consent tips, so I thought you all might like this claim review. If anyone would like more information on how to help protect yourself in regards to Informed Consent, please DM me and I would be happy to share a document with you.

In this Malpractice Claim Review:
A general surgeon failed to obtain adequate informed consent.


SPECIALTY
General Surgery
ALLEGATION
Failure to obtain Informed Consent
Failure to obtain Consent to remove ovaries
RISK MANAGEMENT FOCUS
Informed Consent
Communication with the patient


Facts of Case
A 49-year-old woman with a long-standing history of multiple complaints involving pelvic pain, menstrual cramping, heavy clotting with her periods, dyspareunia, and urinary incontinence was referred by her family physician to a general surgeon for a probable hysterectomy. She had two surgeries in the past for the urinary incontinence.

The surgeon felt she had a prolapsed uterus and rectocele. He advised her that a laparoscopic assisted vaginal hysterectomy would be the best procedure to resolve her problems. The surgeon discussed the risks of infection, bleeding, and death. During the informed consent discussion, the patient was very adamant that she wanted to keep her ovaries. The surgeon told her he would leave them if they were functional. She then consented to the surgery. There was no documentation in the medical record about the removal of the ovaries and little documentation regarding the informed consent discussion.

During the surgery, the physician noted the left ovarian complex had cystic changes and adhesions. The right ovary also had adhesions. He removed the ovaries believing they were nonfunctional and that there was a possibility of carcinoma. The pathology report indicated multiple benign ovarian cysts and endometriosis. The patient was told about the removal of her ovaries at the time of discharge when the surgeon indicated that the nurse would be discussing hormone replacement therapy with her.

Postoperatively, the patient complained of numerous physical (bowel and bladder problems) and emotional problems (inability to have an orgasm during sex) all which she related to the hysterectomy. She was also very angry about the removal of her ovaries and felt she "had been butchered."

She filed a malpractice claim alleging the surgeon did not have her consent to remove her ovaries and that she was not informed of all the risks of hysterectomy, particularly relating to the probability of nerve damage.



Disposition of Case
This case was taken to trial. The jury found there was no "battery" for removal of the ovaries without consent stating that the ovaries were diseased and the standard of care was to remove them. However, the jury found on behalf of the patient for the lack of informed consent for the hysterectomy and awarded damages of several hundred thousand dollars.



Risk Management Perspective
Informed consent is the result of a communication process during which the physician educates the patient about the significant risks, benefits and alternatives to a proposed medical treatment. The role of the patient in the process is to ask any questions they have, make sure they understand the information given, and either give their consent or decline the treatment.

The process of educating the patient -- using words they can understand and spending time answering all their questions -- is integral to informed consent. Unfortunately, many physicians view obtaining informed consent as simply signing a form. Research shows the average informed consent form is written at a graduate school level, yet it is estimated that 90 million Americans read at a grade 5 level or below.


In order to be successful in a malpractice case alleging lack of Informed Consent, the plaintiff/patient must prove:

1. The physician knew or should have known of the risk involved in the procedure;
2. The risk was significant;
3. The physician failed to discuss it with the patient;
4. A reasonable person in the patient's position would not have consented to the treatment if that risk had been explained to them; and
5. The risk in question actually arose and caused the damage claimed by the plaintiff.

The patient in this case felt she was rushed into surgery and wasn't adequately informed of all the risks of hysterectomy, particularly of the possibility of nerve damage. She alleged that the hysterectomy caused nerve damage that resulted in her bowel, bladder and sexual dysfunction, and if she had known of this risk she would not have consented to the surgery. The jury determined that a "reasonable" patient would want to know of this risk before consenting to surgery.

The poor communication between the patient and the surgeon ultimately lead to her decision to sue. She was angry about the removal of her ovaries; the time delay in telling her about their removal only fueled her anger. She was angry that the physician did not spend more time educating her about the risks of hysterectomy and did not offer any alternative treatments. She testified she was just "given some brochure" to read and a form to sign. The lack of documentation about the informed consent process hampered the physician's defense.



Risk Management Tips

• Educate patients about the risks, benefits, and alternatives to a proposed procedure. Use simple language -- words they can understand.
• Ask the patient to repeat back to you what they understood about the proposed treatment, alternatives and benefits.
• Do not rely on a printed form or brochure alone to provide the patient with information. You must actually discuss the proposed treatment and allow the patient time to ask questions.
• Document the discussion, indicating that you discussed the major and material risks and that the patient's questions were answered to their satisfaction.
• Do not delegate the task of obtaining informed consent to your staff. You, as the physician, are held responsible for carrying out this duty.

I have been told/advised in the past by senior physicians and RM reps to keep your documentation of risks brief. What I mean is several of my colleagues document a list a mile long of potential and exceedingly rare complications while I tend to be brief. I have had RM people tell me that by being brief you can, if you are deposed, simply fall back on what your standard practice is and state you explained all possible risks. By being verbose you basically open yourself up to the plaintiffs lawyer saying you failed to explain risk of this event or that event. Is this true?

 

[dannyboy1]

I have been told/advised in the past by senior physicians and RM reps to keep your documentation of risks brief. What I mean is several of my colleagues document a list a mile long of potential and exceedingly rare complications while I tend to be brief. I have had RM people tell me that by being brief you can, if you are deposed, simply fall back on what your standard practice is and state you explained all possible risks. By being verbose you basically open yourself up to the plaintiffs lawyer saying you failed to explain risk of this event or that event. Is this true?

I don’t see how this can be proven in court. It seems to be a he said/she said. Maybe they didn’t specify oopherectomy in the procedure consent and that gave the opposing attorney ammunition to question the entire consent ? Every surgical consent says “bleeding, infection, nerve damage, or death”

 

[Rcola23]

Since there has been such an interest in these Malpractice Cases, and very good questions and discussions, would anyone like me to set up a live webinar?

We can have it be general, or geared towards Anesthesia. We can go further into reviewing claims, the trends that we are seeing the malpractice space, best risk management practices, and whatever else you think would be valuable. I could have an attorney on or present that you could have a Q&A session with.

Let me know your thoughts!

 

[vector2]

Rcola, you say that a "laundry list" is not required, but wouldn't the obgyn having a standard hysterectomy procedure consent that exhaustively mentions the risks (including the possibility of nerve damage) have protected him assuming the patient signed it? Would it still have protected him even if his H&P and progress notes made no mention of said specific risk?

 

[sigrhoillusion]

We have an anesthesia consent which has an exhaustive list of pretty much every complication.
I try to be as brief and succinct with my consents especially in the healthier patients. I usually tailor it to each individual especially if they are at a higher risk for cardiorespiratory issues and will talk about possibility of post-op vent or ICU stay.

Usual dialogue goes:
1. Introduction, confirm patient and surgery, and have they seen surgeon that day yet?

2. NPO status, allergies, medical problems which I usually go through the main ones HTN, DM, asthma, COPD, OSA, kidney problems, seizures, strokes, MIs then ask if I missed anything, then meds and what they took that day or when's the last time they took a blood thinner (I try to at least look patient's up briefly so I can interject with "why are you on THIS med?" which tends to jostle there memory about medical problems. OBviously depending on their answers, I then tailor it further to find out about BP control, inhaler use, hospitalizations, dialysis, pacemakers, stents, CABGs etc...

3. I then ask if they are having any current CP, SOB, coughs, fevers. If yes... what kind? is it chronic? worse than usual? how many flights of stairs? Do you see a specialist?

4. I then go into the anesthesia. Typical general anesthetic goes we're gonna place an IV out here (peds consents obviously different). When room is ready, you'll get some medicine to help you relax. Once in room, move to OR table, monitors on, mask of O2 for a minute or so, then I'm going to give you stronger medicine which may burn then you will be asleep. Once you're asleep we will secure your airway. "Do me a favor and open your motuh, any missing, loose, chipped teeth? There is a very small chance we can cuase dental, lip or gum damage, however your airway appears normal so it is unlikely. (obviously alter this if there airway sucks and i don't mention LMA or ETT unless they ask, since I feel the risks are the same). You may have a sore throat/cough when you wake up but you likely won't remember the airway being in. (If they really press me about the airway and waking up, I will assure them that my goal is to take the airway out as quickly but as SAFELY as possible once they are breathing appropriately. I then tell them that I will give them medicine for pain so that they should wake up comfortably, but I can't promise them ZERO pain but it should be minimal or tolerable. I will also give them medicine for N/V. Otherwise anesthesia is very safe and someone will be in the room monitoring you at all times. I don't expect any serious complications, but I have emergency drugs/equipment available if they should arise. Once we are done we will take you to the PACU where we will continue to monitor you and make sure you wake up appropriately and continue to treat any pain/nausea you might have. Do you have any questions?

5. Even if I'm doing sedation/MAC cases I will check off general anesthesia and tell them it's unlikely but if for any reason we had to secure your airway it's always our back up plan.

6. Do a focused physical exam.

7. Tell them I have a consent form which goes over what we talked about, and to feel free to read it over and ask any questions.

I then tell them that the surgeon will be by to answer any procedure questions (unless they've seen them alrady that day), the OR nurses and the CRNA/resident who works with me.

Written out it seems lengthy, but it takes less than 5 minutes, obviously longer with complicated patients. The patients usually sign right away.

My question for lawyer people is, is this precise enough? If I don't MENTION possible stroke, but it's written on the form is that enough if I mention "serious complications"?

 

[woopedazz]

Going back to the first case:

Everyone's glossing over the fact that guy had severe pyelonephritis and urosepsis; he did not have any acute surgical pathology. I hope they did some bloods checking bili, etc if the brown urine was a pattern-matching driver for OT, because from the stem they knew he at had a UTI.

I get that we're service providers and if a surgeon says "this guy is absolutely ****ed from sepsis... he's a difficult historian/exam... we've got stones on the scan... we need to cut him open now," then we need to facilitate an emerg OT. However, sometimes there's more to the story. I hope they sat down and actually thought it through before cutting. Sounds like radiologically it appeared very chronic. If they had done the kidneys on the same scan and we had the bloods reported in the stem I know which one I would've suspected.

One I've been involved in: urgent lap, presumed ischaemic gut. Patient admitted 2 days prior with delirium. 2x positive MSSA urine cultures and 1x "interim" positive MSSA blood, which was "pending confirmation" and so hadn't triggered an alert. Only the intern had checked the bloods for the two days since admission. Before the case started I was skimming through the bloods and see the results, confirm the guy had not been on any Abx since admit and check the indication for the OT: Minimally raised lactate and dropping GCS and blood pressure. Raised it with the surgeon, who was like "well we're all here now so we need to exclude ischaemic gut," fair enough. He was dropping off the cliff on arrival to OT and despite art lines, CVC, support, etc he arrested on the table following induction, then came back and had a plum normal lap. Died some time later in ICU from multi-organ failure. Not saying he would've lived, but the anaesthesia-assisted hypoperfusion certainly didn't help.

 

[Rcola23]

Good Morning, Everyone -

There have been some very specific legal questions that have been asked on the forum, which is great! The delay in answering was due to speaking with my legal team regarding how involved they would want to be in answering these questions on an open forum.

I am pleased to say that they have agreed to answering your questions! For some of the posters above - I will be getting your questions answered in the next day or so. Going forward, the only thing I would ask is that if you have a very individual and specific question, please send me a DM.

As I stated before, we are here to help bring whatever knowledge and resources we can to help mitigate risk to all of you.

Here's another claim for you!

In this Malpractice Claim Review:
Good documentation of the informed consent process helps defend a malpractice case.


SPECIALTY
Surgery
ALLEGATION
Improper Performance of Colonoscopy resulting in Perforation
RISK MANAGEMENT FOCUS
Documentation
Informed Consent


Facts of Case
A 54-year-old retired male schoolteacher with a family history of colon cancer went to his local hospital for a colonoscopy. During the procedure, the surgeon removed four polyps.

The following day, the patient came into the emergency department complaining of severe pain in the right lower quadrant of his abdomen. His white blood count was elevated to 12,200 with a left shift. The surgeon took upright abdominal x-rays, but did not see any free air under the diaphragm. The surgeon then ordered a CT scan, which showed a localized perforation in the area of the right lower quadrant near the cecum. The surgeon’s differential diagnosis was either colonic perforation secondary to colonoscopy or possible appendicitis. The patient went into surgery that afternoon. The surgeon repaired a large perforation at the junction of the hepatic flexure and ascending colon in a retroperitoneal position.

The patient had an uneventful recovery and was discharged after several days. He later filed a malpractice claim against the surgeon claiming the perforation was negligent care.



Disposition of Case
The case closed with no payment to the patient.



Risk Management Perspective
The medical experts who reviewed this case agreed that colon perforation is a recognized risk of colonoscopy occurring in approximately 1 in 1000 procedures. The reviewers agreed that the surgeon recognized the complication in a timely manner and appropriately took the patient to surgery for repair of the perforation. The surgeon documented in the medical record a good informed consent discussion with the patient, including discussing about the risk of perforation. In addition, the nursing staff documented that the patient watched an educational video and was given written information about colonoscopy.



Risk Management Tips
The actual discussion between the physician and the patient is the critical element when obtaining informed consent. However, patients tend to forget much of the information relayed to them. Thorough documentation of the informed consent discussion is important to provide essential evidence when defending a claim alleging negligent nondisclosure.

MMIC recommends that physicians document the informed consent discussion in the progress notes, if the patient is hospitalized or in the chart notes, if the discussion takes place in the physician’s clinic. Include the names of any witnesses to the informed consent discussion. A signed consent form provides additional evidence that the discussion occurred.

Most consent forms and patient education materials are written at a 10th grade reading level or higher. The average American reads at an 8th to 9th grade level and one out of five adults has a reading level at the 5th grade level or below. Therefore, the readability of your consent form and patient education materials should be at a 5th to 8th grade level.


Revise consent forms and patient education materials so that they are easy for your patients to read and understand

• Provide only the essential information in order of importance
• Use plain, simple non-medical words
• Use short paragraphs
• Categorize information by using bullets
• Use large font (12 point minimum)
• Use simple graphics
• Enhance the use of “white space”
• Translate forms and education materials into the language of your patients

Always document any educational materials given to the patient as part of the informed consent process. Keep copies of all educational materials accessible in the facility, noting the date when any updates or changes are made to the materials.

 

[Rcola23]

We have an anesthesia consent which has an exhaustive list of pretty much every complication.
I try to be as brief and succinct with my consents especially in the healthier patients. I usually tailor it to each individual especially if they are at a higher risk for cardiorespiratory issues and will talk about possibility of post-op vent or ICU stay.

Usual dialogue goes:
1. Introduction, confirm patient and surgery, and have they seen surgeon that day yet?

2. NPO status, allergies, medical problems which I usually go through the main ones HTN, DM, asthma, COPD, OSA, kidney problems, seizures, strokes, MIs then ask if I missed anything, then meds and what they took that day or when's the last time they took a blood thinner (I try to at least look patient's up briefly so I can interject with "why are you on THIS med?" which tends to jostle there memory about medical problems. OBviously depending on their answers, I then tailor it further to find out about BP control, inhaler use, hospitalizations, dialysis, pacemakers, stents, CABGs etc...

3. I then ask if they are having any current CP, SOB, coughs, fevers. If yes... what kind? is it chronic? worse than usual? how many flights of stairs? Do you see a specialist?

4. I then go into the anesthesia. Typical general anesthetic goes we're gonna place an IV out here (peds consents obviously different). When room is ready, you'll get some medicine to help you relax. Once in room, move to OR table, monitors on, mask of O2 for a minute or so, then I'm going to give you stronger medicine which may burn then you will be asleep. Once you're asleep we will secure your airway. "Do me a favor and open your motuh, any missing, loose, chipped teeth? There is a very small chance we can cuase dental, lip or gum damage, however your airway appears normal so it is unlikely. (obviously alter this if there airway sucks and i don't mention LMA or ETT unless they ask, since I feel the risks are the same). You may have a sore throat/cough when you wake up but you likely won't remember the airway being in. (If they really press me about the airway and waking up, I will assure them that my goal is to take the airway out as quickly but as SAFELY as possible once they are breathing appropriately. I then tell them that I will give them medicine for pain so that they should wake up comfortably, but I can't promise them ZERO pain but it should be minimal or tolerable. I will also give them medicine for N/V. Otherwise anesthesia is very safe and someone will be in the room monitoring you at all times. I don't expect any serious complications, but I have emergency drugs/equipment available if they should arise. Once we are done we will take you to the PACU where we will continue to monitor you and make sure you wake up appropriately and continue to treat any pain/nausea you might have. Do you have any questions?

5. Even if I'm doing sedation/MAC cases I will check off general anesthesia and tell them it's unlikely but if for any reason we had to secure your airway it's always our back up plan.

6. Do a focused physical exam.

7. Tell them I have a consent form which goes over what we talked about, and to feel free to read it over and ask any questions.

I then tell them that the surgeon will be by to answer any procedure questions (unless they've seen them alrady that day), the OR nurses and the CRNA/resident who works with me.

Written out it seems lengthy, but it takes less than 5 minutes, obviously longer with complicated patients. The patients usually sign right away.

My question for lawyer people is, is this precise enough? If I don't MENTION possible stroke, but it's written on the form is that enough if I mention "serious complications"?

From one of our Attorneys:
"I believe this is a comprehensive informed consent process that is well thought out and delivered."

Hope that helps!

 

[Rcola23]

I have been told/advised in the past by senior physicians and RM reps to keep your documentation of risks brief. What I mean is several of my colleagues document a list a mile long of potential and exceedingly rare complications while I tend to be brief. I have had RM people tell me that by being brief you can, if you are deposed, simply fall back on what your standard practice is and state you explained all possible risks. By being verbose you basically open yourself up to the plaintiffs lawyer saying you failed to explain risk of this event or that event. Is this true?

Good morning - this was a GREAT question, and actually led to a very good internal discussion in the office. This is a gray area, and often times, Malpractice carriers advise on both sides - minimal documentation vs. comprehensive documentation.

Here is an opinion from one of our Attorneys that supports what you have been told:

"Yes this is true. An exhaustive list is never truly exhaustive. Our suggestion is that you document what the “risks, benefits and alternatives were explained to the patient and the patient indicates an understanding of such. The PT had an opportunity to ask questions and has elected to proceed with the procedure.” Informed consent is a process not a form, and in the unlikely event of a malpractice case the above type of documentation will show that the process has taken place."

 

[Rcola23]

Rcola, you say that a "laundry list" is not required, but wouldn't the obgyn having a standard hysterectomy procedure consent that exhaustively mentions the risks (including the possibility of nerve damage) have protected him assuming the patient signed it? Would it still have protected him even if his H&P and progress notes made no mention of said specific risk?

Another good question - here is an opinion from an Attorney:

"We suggest that you don’t use forms with exhaustive lists. The average American reads on a 5th grade level so the effectiveness of such forms is negligible and courts recognize that. Common risks of the procedure should be explained and discussed but being overly “exhaustive” comes off as CYA and is of little help."

 

[anbuitachi]

Now what if a physician writes down he discussed XYZ risk/benefits, but the patient claims the physician never did (like you said, many forget). Or what if a physician documents XYZ but never actually did explain that to the patient? How can you prove it since in both cases it's in the documentation

 

[Crabbygas]

My discussion of risks is very minimal for routine patients. You might barf, the nerve block might not work well, if the spinal fails you may have to go to sleep. If there are unique risks for a certain patient I discuss those for example bad lungs at high altitude may need home oxygen for a day after an interscalene block. 20 years and never been sued. I suppose my question would be how often does the written informed consent document ever prove pivotal in either preventing or winning a suit. Especially the preventing part as it seems that getting sued is almost as bad as losing in terms of future pain.

 

[San Marzano]

My discussion of risks is very minimal for routine patients. You might barf, the nerve block might not work well, if the spinal fails you may have to go to sleep. If there are unique risks for a certain patient I discuss those for example bad lungs at high altitude may need home oxygen for a day after an interscalene block. 20 years and never been sued. I suppose my question would be how often does the written informed consent document ever prove pivotal in either preventing or winning a suit. Especially the preventing part as it seems that getting sued is almost as bad as losing in terms of future pain.

20 years with no lawsuit sounds pretty significant. What type of practice have you been in?

 

[narcusprince]

Have you ever encountered consents being voided based on patient duress? For instance you have a 23 y/o G1 that shows up in the middle of the night 10/10 pain 5cm now demanding a labor epidural. Enter the room mom is in duress you explain risk benefits mom signs consent. Mom then complains of headache afterwards 24 hours and has a siezure then claims she did not know risk benefits due to pain when signing consent.

 

[Noyac]

Where I work pretty much everyone from the ED who is going for surgery has an ekg ordered almost reflexively. We don’t get the choice not to order one. Could definitely see something like this falling through the cracks. Diagnosis is cholecystitis so you expect the patient to be in pain...47 y/o so not that suspicious for CAD...Unless it was a slam dunk horrible ekg I could see most docs doing this case. Goes to show that malpractice cases are as much about bad luck as it is about bad practice

I just did a case today that was a sick cardiac pt with an obstructing ureter stone who came to the ER with lactic acidosis and early sepsis. The has had stress tests and Cath’s in the recent past for cardiac complaints. I couldn’t find an EKG anywhere in EPIC and the ER didn’t get one either. Placed him on my monitor and it showed a LBBB. I did the case.

 

[Noyac]

My discussion of risks is very minimal for routine patients. You might barf, the nerve block might not work well, if the spinal fails you may have to go to sleep. If there are unique risks for a certain patient I discuss those for example bad lungs at high altitude may need home oxygen for a day after an interscalene block. 20 years and never been sued. I suppose my question would be how often does the written informed consent document ever prove pivotal in either preventing or winning a suit. Especially the preventing part as it seems that getting sued is almost as bad as losing in terms of future pain.

Exactly how I do it. But I’ve only been at this for 17 yrs with no suits.

 

[deleted171991]

My discussion of risks is very minimal for routine patients. You might barf, the nerve block might not work well, if the spinal fails you may have to go to sleep. If there are unique risks for a certain patient I discuss those for example bad lungs at high altitude may need home oxygen for a day after an interscalene block.

I'll leave the details to the lawyers, but I would bet my retirement that this does not qualify as informed consent.

20 years and never been sued. I suppose my question would be how often does the written informed consent document ever prove pivotal in either preventing or winning a suit. Especially the preventing part as it seems that getting sued is almost as bad as losing in terms of future pain.

The written consent is not informed consent. Going through it, line by line, explaining it to the patient, risks, benefits, and alternatives, all the frequent and serious complications, that's what makes it informed. Not just signing a piece of paper. This ain't a credit card or software user agreement. You can show it in court all you want, if the patient or a family member points out that you didn't explain it, it shouldn't be worth much.

I know that the informed consent process can be stressful for both patient and anesthesiologist (much nicer to just do small talk), but most of my patients actually thank me for being thorough, when I occasionally apologize for having to do it (on top of an already detailed and nosy preop). On the other hand, my patients are sicker than average.

 

[deleted171991]

20 years with no lawsuit sounds pretty significant. What type of practice have you been in?

Palliative care.

 

[Arch Guillotti]

My discussion of risks is very minimal for routine patients. You might barf, the nerve block might not work well, if the spinal fails you may have to go to sleep. If there are unique risks for a certain patient I discuss those for example bad lungs at high altitude may need home oxygen for a day after an interscalene block. 20 years and never been sued. I suppose my question would be how often does the written informed consent document ever prove pivotal in either preventing or winning a suit. Especially the preventing part as it seems that getting sued is almost as bad as losing in terms of future pain.

Agree. Keep it simple unless circumstances dictate otherwise.

 

[pgg]

Have you ever encountered consents being voided based on patient duress? For instance you have a 23 y/o G1 that shows up in the middle of the night 10/10 pain 5cm now demanding a labor epidural. Enter the room mom is in duress you explain risk benefits mom signs consent. Mom then complains of headache afterwards 24 hours and has a siezure then claims she did not know risk benefits due to pain when signing consent.

I agree that these patients aren't really in the optimal frame of mind to carefully listen and consider what we have to say, but labor pain relief is sort of a special case. We have the ACOG and ASA statements and practice bulletin which explicitly name analgesia as something that shall not be denied to women in labor, amen. The clear implication here is that a woman in pain is deemed by our professional societies to be capable of understanding her options and consenting. These statements and the community standard behind them carry weight in court.

Also, to be a little contrarian, I think we actually can get reasonably informed consent in almost all of these patients, it's just harder than the elective hernia patient you're seeing in preop.

In practical terms, for the "just gimme something to sign and put in the epidural" kind of patients, I let them sign, and then during the couple minutes it takes to get them positioned, the kit opened, the back prepped, drape up, vials cracked, etc, I continuously talk to them. Mostly this is
- telling them what they'll feel before I do it to minimize their anxiety about the scary guy with the big needle behind them
- managing expectations for the onset time, density, and nature of the block / pain relief they're going to get
but also
- dropping in bits about PDPHs, inadequate analgesia, what we'd do for a c-section or other emergency
- "in a moment I'll need you to hold as still as possible, because even though epidurals are very safe, about 1 in 50,000 people will have some kind of persistent weakness or numbness after an epidural, hard to say if that's because of the epidural or the pushing and stress of childbirth, but I'll be slow and careful, and I want you to tell me if you feel anything sharp or a shock radiating down your leg, so we can minimize that risk"
- a timeout that involves the patient verbally proving she knows her name and birthdate and understands she's about to get an epidural

You get the idea. It's a rare patient who's so continuously wailing and carrying on that you can't sneak in the risk highlights before you put a needle in her.

In short I have never done an epidural without explaining the common risks and mentioning the rare ones, and since I mix that info in with things even the most histrionic crazy patient wants to know (how soon the epidural will kick in, what the button is and does, what they'll feel), I feel pretty confident that most of it gets through ... at least, to the English speakers. In a sense I'm tricking the uncooperative people into paying attention. Not much else you can do.

 

[T-burglar]

I pretty much do what pgg does. I sometimes preface it with “ this is a medical procedure that involves some minor risks so I do have to at least briefly talk about those risks..”. If they try to shut me up I just keep preparing and reiterate that I’m required to at least mention a few risks, and sometimes I’ll talk more to the dad and make eye contact so that I feel like at least someone in the room besides the nurse heard me .

 

[deleted171991]

The problem is that the courts are now making a big deal out of informed consents, so not getting a proper consent is a fast track to a settlement.

That's also why preanesthesia clinics are important for riskier procedures/patients, because there is no way one can convince a jury one did properly inform a patient in a 3-minute preop conversation (which also included a history and physical).

I also find that patient satisfaction has to do a lot with managing expectations. If you paint everything as rosy (minor this, minor that), just to relax them, they will blame you for anything bad that happens. A good informed consent process helps a lot when things go wrong, not just from a legal standpoint. It makes patients and families realize that general anesthesia is not just a walk in the park. That's also why ICU docs are sued less.

 

[anbuitachi]

The problem is that the courts are now making a big deal out of informed consents, so not getting a proper consent is a fast track to a settlement.

That's also why preanesthesia clinics are important for riskier procedures/patients, because there is no way one can convince a jury one did properly inform a patient in a 3-minute preop conversation (which also included a history and physical).

I also find that patient satisfaction has to do a lot with managing expectations. If you paint everything as rosy (minor this, minor that), just to relax them, they will blame you for anything bad that happens. A good informed consent process helps a lot when things go wrong, not just from a legal standpoint. It makes patients and families realize that general anesthesia is not just a walk in the park. That's also why ICU docs are sued less.

What do you do when you have a patient that says they dont want to know? I think its not uncommon to encounter this type of patient. I talk to them and they say I dont want to know, just put me to sleep and wake me up. I dont want to know the risks..
Usually i tell the patient risk of tooth dmg, eye damage, death, heart attack, stroke, breathing difficulties..

 

[Noyac]

My standard statement is this:
There are a entire host of things that can occur with surgery and anesthesia. This consent lists many of them but can not include everything. I have gone over the more common things like nausea etc. Would you like to discuss these in more detail? They always say “no”. Then I say please read them if you wish and ask me any questions you may have. After that please sign HERE.

What is everyone’s thoughts on my approach?