Friday, August 31, 2012

Informed Consent & The Duty to Disclose Treatment Risks

On August 7, 2012, the Public Library of Science (PLOS) Medicine Journal released a study focused on medical malpractice lawsuits arising from doctor-patient disagreements regarding informed consent. With informed consent, doctors are expected to advise and empower patients by sharing information that may affect treatment decisions, including risks of adverse outcomes.

The study found, however, that "doctors, especially surgeons, are often unsure which clinical risks they should disclose and discuss with patients before treatment." The authors go on to assert that while most informed consent disputes involve disagreements about who said what and when (rather than arguments over whether a particular risk should have been disclosed), doctors may "routinely underestimate the importance of a small set of risks that vex patients."

Specific Study Findings

Of the nearly 10,000 malpractice claims and health care complaints sampled in the study, the researchers identified 481 disputes over informed consent, 45 of which were "disputed duty cases," defined by researchers as "disagreements between patients and doctors over whether a particular clinical risk should have been disclosed before treatment." Two-thirds of the disputed duty cases involved surgical procedures, and the majority (38 out of 45) involved five adverse outcomes:

  • The need for further surgery
  • Poor cosmetic result
  • Impaired vision or hearing
  • Chronic pain
  • Infertility or sexual dysfunction

The authors reported that the most common justifications doctors gave for non-disclosure were that the risk was too rare to warrant discussion or the specific risk was covered by a more general risk that was discussed.

Nine in ten of the disputes studied centered on factual disagreements, or arguments over who said what and when. In these cases, the documentation of consent discussions leading up to medical treatment is especially important because written accounts may show whether and when an operative risk was discussed.

The study concludes, "Improved understanding of [informed consent disagreements] helps to spotlight gaps between what patients want to hear and what doctors perceive patients want - or should want - to hear. It may also be useful information for doctors eager to avoid medico-legal disputes."

Speak to an Experienced Colorado Medical Malpractice Attorney

If you feel that a medical provider did not properly explain or inform you of medical treatment options and risks, an experienced medical malpractice lawyer can help determine if you may be entitled to compensation for harms related to the oversight or mistake. In Colorado, contact the Denver law firm of Paulsen & Armitage, LLC for a free and informative attorney consultation regarding informed consent.