We’ve all been there: discussing the case of appendicitis in room six with the on-call surgeon, and the response includes something along the lines of “make sure you get consent.” Hard stop. The fact that this is commonly requested of emergency physicians is a testament to the widespread misunderstanding of informed consent, how it is obtained, and how to document it.

Point One: Informed Consent Is Not a Signed Boilerplate Form on the Chart

True, such documentation is required by hospitals and by CMS, but to confuse the completion of this form with the completion of the informed consent process is a serious error.

This is not to cast aspersions on consulting physicians; it applies equally to emergency physicians who ask medical students or nurses to “get consent.”

While it may be appropriate for another member of the care team to obtain the patient’s signature on the pre-printed form after the physician performing the intervention has had the appropriate discussion with the patient, only that physician can lead an adequate informed consent discussion. Regardless of whether there is a signed form on the chart, the patient has not given informed consent if that discussion has not taken place.

Point Two: Proper Informed Consent Is Critical to Autonomy and the Patient-Physician Relationship

The modern practice of medicine is based in significant part on an ethical model of informed consent. This rests on the patient’s fundamental right to make decisions about his or her own body. Though the patient has, in effect, hired the physician as a learned intermediary to provide medical expertise and recommend a course of therapy, the decision to accept or refuse treatment ultimately lies with the patient.

The provider may make recommendations but should be careful to avoid even the appearance of coercion. This is not to imply that physicians should be compelled to perform treatments that are not medically indicated at the behest of the patient. However, it is crucial to remember how very important the informed consent process is to an ethically and legally sound patient encounter.

‘In 2009, a Maryland jury found no cause for medical malpractice based on the actual course of medical treatment but awarded the plaintiff a $13 million verdict for lack of informed consent.’

Point Three: Proper Informed Consent Is a Key Area of Managing Malpractice Risk

In keeping with the fundamental importance of informed consent to procedures and treatments that carry risk of harm, informed consent itself is often litigated.