Failure to diagnose accounts for a significant number of malpractice claims against dermatologists. However, failed informed consent and failure to communicate rank among top causes of legal action in the specialty. Speaking at the Winter Clinical Dermatology Conference held in Kauai, Hawaii in January, Abel Torres, MD, JD highlighted the importance of informed consent during his lecture on malpractice protection strategies.
Informed consent is as much about the dialogue between the patient and the physician as it is the final signed document, noted Dr. Torres, Professor and Chief of Dermatology at Loma Linda University School of Medicine. The physician and/or qualified staff should not simply read off a quick “script” devised for the procedure in question. It is appropriate to offer advice to the patient and essential to discuss material risks, Dr. Torres said. That means addressing likely significant risks, viable alternatives, and the rationale for the procedure to be performed. The length of the discussion should be proportionate to the invasiveness of he procedure, he said.
The conversation is the foundation of informed consent, but it is just one element. Written consent is helpful, but the matter can be complex, Dr. Torres noted. Forms infer that the patient had an opportunity to review risks and benefits and that there was an opportunity to discuss these with the clinician. However, simply having a form does not ensure or document that a conversation took place, and an unsigned form does not qualify as proof of consent. Documenting the discussion with the patient is critical. Dr. Torres suggests documenting the discussion in the patient's chart and including a notation of something unique about the patient. Oral consent alone is not recommended, as it may be hard to prove, especially if the patient moves on.
Documentation serves not only to protect the physician and practice; it can promote better results and benefit the patient. For example, post-operative instructions and wound care advice may be quickly forgotten if provided orally only. In fact, a 2003 study (Dermatol Surg; 29:952-55), found that after 20 minutes only 12.9 percent of 85 Mohs patients could recall five or more out of 10 complications described by the surgeon. Mean retention at 20 minutes was 26.5 percent; at one week it was 24.4 percent. Gender, age, and education level had no effect on recall.
Meeting of the Minds
The “LASERS” mnemonic reminds of key aspects of informed consent, according to Dr. Torres. It stands for: Liability waiver, type of Anesthesia must be discussed, Surveillance and observations should be described in advance, no Expectations/guarantee clause, Revocation of consent process should be addressed, Snapshots/photographs are part of documentation.
In the end, Dr. Torres says, informed consent is about the process of educating the patient and dialoguing with him/her—acheiving what he called a “meeting of the minds.” At the heart of informed consent is the reality that the patient is autonomous and must be permitted to make his/her treatment decisions based on knowledge and comfort with the physician and procedure.