On the Surgical Consent Process
Today I saw a patient for a preoperative visit and went through the ritual of “informed consent” and the signing of the surgical permit. We had decided to do a hysterectomy to treat her problematic fibroids, and she very much wanted to proceed. Having discussed the alternatives, we now had to go through the legal ritual of the surgical consent.
As usual, I discussed what we could expect to gain from the hysterectomy. There was a 100% chance that she would no longer have any bleeding, and a very strong chance that any pain that originated in her central pelvis would get entirely or mostly better. Anemia that resulted from the bleeding would improve. Other symptoms, like urinary pressure and frequency, and lateralized pelvic pain, would likely improve though it is not as strong a likelihood as the other symptoms.
We also discussed the risks. “You could have bleeding during the surgery, potentially enough to need a blood transfusion before or after surgery. You could get a communicable disease from a blood transfusion. You could develop a wound infection or abscess, which sometimes is easy to treat and other times quite complicated. Anything in the abdomen could be damaged during the surgery, such as the bowel, bladder, ureters (“which carry urine from the kidneys to the bladder” I always say), blood vessels, or other structures. Anything damaged can be fixed at the time by myself or a consultant. There is a possibility something could be damaged but we do not recognize it at the time, or that there is a delayed injury. If this occurs you might need further surgery, antibiotics, or hospitalization. Though extremely rare, you could die or be injured from an unforeseen surgical complication or complication of anesthesia.”
At this point she looked white as a sheet, as usual, and then I tempered with “but all of this is extremely unlikely, less than 1% of cases for major issues, and I have to explain it all for legal reasons. I am well trained to do this surgery and will do my absolute best for you.” I answered her questions, the consent is signed, and we had our pre-op.
While this consent process is quite standard, it just seems a little ridiculous to me. Its a bit like asking your neighbor bring your son home from school, and having her say “we may get hit by another car, I might run a red light, we may run out of gas on a train track, there might be a meteor that hits the car and kills us all…. but don’t worry I am a good driver and your son will be fine.”
The fundamental reason we do these consents is that we believe that in some way they will protect us in a lawsuit if something bad happens. For example, let’s say somehow I transect a ureter in my patient’s hysterectomy, I can say “See – I said this was a risk of the surgery… it wasn’t my fault!”
But isn’t that a bit ridiculous? Is telling somebody that something bad could happen actually a defense if that bad thing does happen? In some cases a problem is truly random, such as the development of a pelvic abscess after a hysterectomy, but in other cases it is not. There is almost no situation in which I could cause a ureteral injury and have it not be a surgical error. If it happens, I did it – and it was a mistake. Ureters are damaged in about 1% of hysterectomies, but its not like they magically get injured in 1% of cases. In 1% of cases the surgeon makes an error.
When I was a resident I worked with one attending that thought along these lines as well, and had a very different consent process.
“We are doing X surgery because of X. I’m a good surgeon, and think I can do this surgery without a problem. You need to sign this paper or the hospital won’t let me operate. I think it will go well, but anything can happen, and if it does and you think its my fault you can still sue me.”
This all seemed very glib the first time I heard it, but I have to say I have always had a lot of respect for that attending’s honesty. He was telling it like it really was, even though it wasn’t necessarily the smoothest way to go about it. He was indeed a very good surgeon. His partners thought he was a bit nuts, though.
The trouble with the standard consent process is that it doesn’t deal with the real issue; errors do occur, and physicians cannot be perfect. By naming error-driven events as statistical occurrences, the process supports an expectation that surgeons will never make errors, and thus the corollary that any surgical error is a de facto breach of physician’s fiduciary duty.
Every time I do a standard consent process, I think about doing it differently. Perhaps something like this:
“We are doing X surgery because of X problem. I am well trained to do this surgery, and think I can give you a great chance at an good outcome. Your surgery is something I know I can do well, but I cannot guarantee that you will not have a problem. I can only guarantee that when I do your surgery I will be well rested and that my team and I will do our best.
Sometimes when bad things happen during or after surgery it is a random event. There are certain things we can do to reduce these events, and we will do those things. Another kind problem can be because a member of my team or I makes a technical error. While I do my best to operate perfectly, it is possible that I could make a mistake. I have occasionally done so in the past, and will no doubt do so again in the future. As I have always learned a great deal from these rare mistakes, I hope to think I will never make the same error twice. Fortunately, almost every error is recoverable, and I know how to make those recoveries. If we have a problem, I will be there to fix that problem and help you through whatever recovery is necessary. I will explain the problem to you, and if I know, I will explain how it happened.
(now sign this paper or the hospital won’t let me operate :) )”
I often wonder if the common legalese consent process we go through actually protects us. Ultimately, we are bound to meet the goal of “The Standard of Care”, and we don’t get to define that standard on our consent form. Lawyers love to say that this standard is readily viewable in any textbook, but in reality its pretty grey. The exact definition changes from state to state, but usually is defined as what another reasonably practicing physician of similar training and situation would have done in the same situation. Fortunately, reasonably practicing physicians of similar training and situation also make mistakes from time to time, and usually lawyers and juries recognize that. As long as one recognizes the mistake and does the right thing from there forward, usually one has a reasonable defense.
So let’s just say that up front. We are well trained, and we do our best. If we screw up, we’ll let you know that, and we’ll fix it. Now sign here.