For example, 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. In that case, failing to advise the patient of alternatives to the recommended therapeutic course was the only malpractice committed and was sufficient to support a significant jury verdict.

Point Four: Only the Appropriately Trained Practitioner May Obtain Informed Consent

Though medical students, nurses, and residents are at times tasked with “consenting the patient” for a procedure such as surgery, an LP, or a sedated orthopedic reduction, they cannot and should not be asked to do this. Particularly in the case of residents (who must ultimately gain competence in this area), practice of this skill is critical; however, resident efforts in this respect cannot be considered definitive.

Further, as noted above in point one, even an emergency department attending physician is not the appropriate person to facilitate the consent discussion for an inpatient or surgical procedure.

Setting aside the consent exception for exigent circumstances, this duty must fall to the surgeon, anesthesiologist, and/or other appropriate practitioners.

‘Studies show that the patient might have no recollection of the specific points of discussion 15 minutes later, let alone months to years later in the event of a dispute adverse outcome.’

Point Five: Boilerplate Forms Are Not the Best Way to Document Informed Consent

In the same manner that “all WNL” is not necessarily effective documentation of physical exam, a boilerplate consent form stating “all risks, benefits, and alternatives to treatment” have been discussed is not necessarily effective documentation of informed consent.

First, it is neither practical nor possible to discuss all risks, benefits, and alternatives to treatment in the emergency department setting.

Second, the precise disclosure standard is elusive and might vary by practice setting. In general, though, it encompasses the expected practice of a reasonable practitioner under the circumstances as well as the expectations of a reasonable patient.

Third, retrospective studies show that the patient might have no recollection of the specific points of discussion 15 minutes later, let alone months to years later in the event of a disputed adverse outcome. Further, the physician is also unlikely to have credible recall of the event years later, and must then rely on the chart.

For these reasons, taking the (precious) time to ensure that the chart and/or consent form reflects specific details of the discussion will improve the strength of documentation for medico-legal purposes.

Final Point: So, If Informed Consent Is Not a Form, What Is It? How Is It Best Documented?

Informed consent is a process. It is a discussion between the appropriate provider and the patient to allow the patient to make informed choices about his or her own body. As is true with the remainder of the physician-patient encounter, the informed consent process must be adequately yet efficiently documented.