MD News: How Effective Informed Consent Practices Support the Defense of the Surgical Complication at Trial

by | May 21, 2018 | Medical Malpractice | 0 comments

By Anthony M. Sola and Daniel L. Freidlin

Monday, May 21, 2018

Category: Legal

Hysterectomy is one of the most frequently performed gynecologic operations worldwide. As with any pelvic surgery, it may be complicated by injury to surrounding organs, such as bowel, bladder or ureters. Retrospective studies have found that the risk of such damage is approximately one to two percent. As the average gynecologist performs hundreds of hysterectomies over the course of a career, such a complication is likely to be encountered at some point. When the injury results in incontinence, a lawsuit often follows.

Knowing that every hysterectomy has the potential to result in litigation, what proactive steps can the physician take to support his or her defense? To appropriately answer this question, it is helpful to consider how a potential juror will evaluate the facts at trial.

In the typical case, the plaintiff’s attorney will argue that the physician not only caused the injury, but also failed to disclose the potential surgical risks in advance of surgery. Knowing the defense will argue that injury to nearby organs is an accepted complication of surgery, the plaintiff’s attorney may choose to focus on the informed consent claim. At trial, a lack of informed consent claim requires that the plaintiff prove that the medical provider failed to explain the benefits of surgery, the alternatives to treatment and the reasonably foreseeable risks. Lay jurors weigh the qualitative sufficiency of the information provided with the assistance of medical expert testimony.

The plaintiff will invariably claim that she was not warned of any serious risks prior to surgery, whereas the surgeon will testify otherwise. How does the jury decide who is telling the truth in this classic “he said, she said” situation? Establishing credibility on the part of the physician often starts with well-documented proof that the patient was given the opportunity to make an informed decision regarding treatment.

Properly defending the claim takes more than a hospital consent form that was signed on the morning of surgery. We typically see the plaintiff testify that the consent was one of many forms handed to them for signature in the admitting office or while being wheeled into the operating room. When the form is dated the same day of surgery, a jury may believe this to be true. An effective practice to combat this is to schedule two pre-surgical office visits. The first preoperative visit will include a discussion of the risks, benefits and alternatives to treatment. This is followed by a second visit, which should discuss the surgery again before the patient signs the consent form. The time between the two visits allows the patient to consider the information before agreeing to treatment.

Adding documentation in the patient’s chart that specifies what the patient was told can also be persuasive, but the plaintiff’s attorney may argue that the medical record was altered after the complication occurred. An effective method of persuading jurors to side with the physician is to supplement the informed consent discussion with a written consent brochure that details the purpose of the surgery, alternatives to treatment, including no surgery, and specifying the important complications and is signed by the patient. This provides the defense attorney with an impactful visual aid to show the jury that the plaintiff was not only informed of the potential complication, but also accepted the risk. A plaintiff who tries to argue otherwise will often lose credibility with the jury.

Statistically, even the most careful of surgeons will encounter this situation at some point in their careers. Employing appropriate preoperative strategies assists in defending lawsuits and may deter plaintiffs’ attorneys from filing suit in the first place.

Source: MD News May 2018, Long Island Edition