Author: Layne Bettini, M.D., J.D.
ASA Monitor 03 2018, Vol.82, 56-57.
Layne Bettini, M.D., J.D., is a CA-1 resident, Mayo Clinic, Rochester, Minnesota.
In the medical profession, the idea of lawyers spawns a litany of thoughts – few of them good. During my medical training, I took a slight detour and attended law school. When I emerged from both programs with a name badge announcing “Layne Bettini, M.D., J.D.,” the jokes came hard and fast (“Q: How many lawyers does it take to screw in a light bulb? A: Three – one to climb the ladder, one to shake it, and one to sue the ladder company.”).
Jokes aside, my legal education instilled in me an appreciation for the intersection between the law and medicine. We, as physicians, often lament the list of tasks in our profession triggered by the law – the arduous notes, the forms, the malpractice insurance. But the law has generated concepts that have real-world importance in both the courtroom and in the lives of our patients. Chief among them is the necessity of obtaining a patient’s informed consent prior to performing medical procedures.
The concept of informed consent is straightforward. It is the physician’s responsibility (in lawyer speak, “legal duty”) to provide adequate information to the patient regarding the scope and risks of the proposed medical intervention so that the patient may make an informed decision on whether he or she wishes to proceed with the intervention. Informed consent comprises three elements: 1) the threshold elements of competence, capacity and voluntary decision-making; 2) the information elements of disclosure, plan recommendation and patient understanding; and 3) the consent elements of the patient’s decision to consent or refuse and the patient’s authorization of the same.1
Anesthesiologists face unique challenges in this regard.1 First, our relationship with the patient typically begins on the day of surgery.1 Second, our patient consultation does not always entail a decision to proceed or not proceed, but may instead consider the appropriate type of anesthesia and postoperative pain management given the individual patient’s needs and background.1 Last, anesthesiologists often provide anesthesia for procedures for which other physicians also obtained informed consent.1
The first and third challenges were recently implicated when I was doing a spine surgery rotation. Spine surgery carries the risk of postoperative vision loss in part due to the prone positioning and duration of the case, among other variables.2 Research indicates that patients have an overwhelming preference to be informed of this risk prior to proceeding with the surgery, despite its rare incidence.2 This is key because the law, in most cases, judges the sufficiency of a physician’s obtaining informed consent on what a reasonably prudent patient would expect to hear from his or her physician regarding the procedure’s risks prior to agreeing to the procedure.3
On my spine rotation, I engaged in my usual discourse related to informed consent. It was during this conversation that I encountered a patient who had not been – or did not recall being – informed of the risk of postoperative vision loss. She was, understandably, very troubled by this risk and was fixated on the possibility of a rare complication despite the multilevel decompression and fusion she was about to undergo. She was somewhat reassured by the low incidence and the measures we would take to minimize the risk, but the news was distressing nonetheless. This last-minute distress could have been ameliorated had the patient received this information from the first physician who obtained her consent for the surgery.
I walked away from this experience understanding the importance of a team approach to informed consent and with an appreciation of my obligation to sufficiently inform the patient regardless of her prior contact with other physicians. The anesthesiologist is often the last physician to speak to the patient before the surgery, and this role carries the special responsibility (medical, ethical and legal) to ensure that the patient has all necessary information prior to his or her procedure.
*This article is intended for informational purposes only and not for the purpose of providing legal advice. The opinions expressed in this article are the opinions of the individual author only.
Tait AR, Teig MK, Voepel-Lewis T . Informed consent for anesthesia: a review of practice and strategies for optimizing the consent process. Can J Anaesth. 2014;61(9):832–842.
Corda DM, Dexter F, Fasternak JJ, Nottmeier EW, Brull SJ . Patients’ perspective on full disclosure and informed consent regarding postoperative visual loss associated with spinal surgery in the prone position. Mayo Clin Proc. 2011;86(9):865–868.