Not-So-Informed Consent

Most medical providers are familiar with the concept of informed consent in which a patient gives permission for a medical or surgical procedure after achieving an understanding of the relevant facts and risks involved. It’s a basic procedure that should have basic results, but with the recent ruling of the Wisconsin Supreme Court in the case of Jandre v. Physician’s Insurance Co. of Wisconsin, those basics are getting increasingly complex.

This spring, the Supreme Court ruled in favor of plaintiffs Thomas W. Jandre and Barbara J. Jandre after events that had taken place in an emergency room in 2003. On June 13 of that year, Thomas Jandre presented to the ER after experiencing 20 minutes of slurred speech, facial weakness on his left side and dizziness. He was treated by Dr. Therese Bullis, who established differential diagnoses including among other things Bell’s palsy, stroke and Multiple Sclerosis. After ordering a CT scan, which returned negative for hemorrhagic stroke, Dr. Bullis diagnosed Jandre with a-typical Bell’s palsy, prescribed medication for him and instructed him to follow up with his primary care physician within a week. Three days later, Jandre saw his primary care physician and was diagnosed with resolving Bell’s palsy. Eight days after that visit, Jandre suffered a massive stroke. And, due to the fact that Dr. Bullis had not informed him that additional tests were available for detecting a stroke, the courts ruled in favor of Jandre who plead a violation of informed consent.

It’s a rare thing today to find a medical malpractice case that doesn’t involve informed consent. Because it requires no expert testimony and is based solely on what a person would want to know as a patient, it is completely subjective. Medical practitioners are at the mercy of what a court believes a “reasonable” patient should have known before the incident occurred, and are thus subjected to the jury’s speculative opinion. Unfortunately this has led to inconsistent verdicts in which physicians are not found to have been negligent in their treatment, but are still in violation of informed consent. And until the court system establishes more concrete laws on the subject, there is little that can be done to change the outcomes.

There is, however, one thing that could change each situation dramatically, and that is proper documentation.

The best way to combat informed consent violations is to put everything in writing. Not only must you have the proper discussions that outline every possible scenario for a patient, you also must put it in writing. By taking detailed notes of the discussion, a physician can at least have proof that certain options were discussed with each patient and that he or she understood the possible outcomes. Each medical provider should also create a patient consent form to be signed by the patient prior to treatment. This form should include the name of the procedure, the physician performing the duty, an outline of the risks and benefits, any alternatives that were discussed, and that the patient had the opportunity to ask any questions. Not only should this form be signed by the patient, it also should include the signatures of both a personal witness and another health care provider involved in the treatment. It may also be beneficial to have the patient initial after each paragraph to ensure extra credibility.

While informed consent will likely remain a subjective topic among the courts, physicians can do themselves a huge favor simply by getting everything in writing. At Gutglass, Erickson, Bonville & Larson, we encourage you as a medical provider to do your best to inform your patients of all possible treatments and outcomes and then to get it on paper. Doing so could make an incredible difference should the subject come up in a legal situation.

So, do your part to take good notes and know that if you need excellent legal representation for any medical malpractice claim, we at Gutglass, Erickson, Bonville & Larson would be happy to offer a free case evaluation. Call us today!  



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