Informed Consent in the Information Age

Informed Consent in the Information Age

For patients, there are no guarantees attached to the services we render as physicians. Actually, as a surgeon I would semi-seriously “guarantee” my patients three things, and three things only: a scar where an incision was made; some transient discomfort at the operative site; and the best job I knew how to do. Having thereby opened the discussion surrounding a recommended surgical intervention, I would begin the time consuming, complex and risky process of informed consent. Informed consent is quite literally the legal contract for care. The physician receives remuneration from the patient in exchange for providing a service. Moreover, because the service carries with it both deliberate injury (for example, any surgery, or administration of chemotherapeutic agents that target living cells) along with the risk of unintended injury, there is both a moral and legal obligation to inform the patient of the benefits, risks and alternatives available and to obtain legal permission prior to intervention. Failures to properly inform, along with negligence, form the only grounds for malpractice lawsuits. Physical intervention in the complete absence of consent can be grounds for criminal assault and battery. A few plaintiffs’ attorneys have tried the latter approach in recent years, though I’m not aware of successful prosecutions. On the other hand, Lawyers Weekly (July, 2000) reported that “med-mal lawyers are bringing more ‘lack of informed consent’ claims” to increasingly sympathetic juries. The traditional approach to informed consent—“Here! Read this! Sign it! Thanks.” —no longer suffices. Through the 1990s, more than $50 million per year was awarded for medical malpractice claims alleging failure to inform. Recently, a Florida jury awarded $3.8 million...