Obtaining Informed Consent in a Teaching Situation
At all institutions with postgraduate training programs, resident physicians and surgeons participate in hands-on patient care to a substantial degree.
Today, although the resident and attending-physician relationship remains intact and postgraduate teaching is conducted in much the same way as always, requirements for pretreatment disclosure have changed significantly. A 1987 landmark case proved the wisdom of using an appropriately broad consent form.
In Adames-Mendez vs. United States, 652 F. Supp. 356, the patient was admitted to the veterans hospital in San Juan, Puerto Rico, complaining of chest pain. He was taken to surgery the same day and underwent an emergency coronary bypass procedure with vein grafts. Unfortunately, an electrical failure during the procedure necessitated manual perfusion of the circulatory system.
The patient survived, but after discharge he experienced inability to concentrate, poor memory, and other related neurological problems. One year later, he learned that his symptoms might have been caused by poor brain perfusion during the electrical failure. The patient filed suit, but the court granted the defendant hospital’s motion for summary judgment. The court, however, carefully considered the patient’s allegation that he had been operated on by someone other than the attending surgeon whose name was on the consent form. The claim was dismissed when the court noted that the consent form was for an operation "to be performed under the direction of Dr. Amadeo and staff."
It is essential when using such language on a consent form (e.g., "physician and staff") that no physician be permitted to assist on an operation unless he/she is in fact a staff member of the hospital. Using physicians employed by a third party to assist in operations has resulted in liability findings for failure to obtain the patient’s informed consent. (See Shepard vs. Sisters of Providence in Oregon, 750 P. 2nd 500, 1988.)
Although the Adames-Mendez case reinforces the need for a consent form that is general in nature, it also emphasizes the importance of informing patients when a resident physician will perform all or part of a procedure. Keep in mind that doubts about the identity or competence of the physician who actually performs a procedure can arise in unexpected ways. Gossip and casual remarks (sometimes well meaning, sometimes not) made by nurses, technicians, orderlies, or other ancillary personnel—as well as by other patients—can plant seeds of doubt that might subsequently trigger a malpractice lawsuit.
Observe a few simple precautions to prevent this type of claim:
- Have the attending physician and house staff visit the patient together, prior to the procedure. During the ensuing discussion, the attending doctor should clarify the resident’s role in the procedure to the patient and his/her family. Detailed descriptions are not necessary, but the patient must understand that the contemplated procedure is a team effort and the attending physician will need assistance.
- Spell out the resident’s qualifications as strongly as possible to reinforce patient confidence in the house officer. It helps if, during the bedside discussion, the patient observes the attending physician treating the resident as a colleague and conducting the discussion in a spirit of respect. A relationship of peers rather than one of master and pupil should prevail; save any disagreements for the staff conference room.
- Clarify that the attending physician will be present at all times in a directly supervisory capacity and that he/she is the responsible doctor.
- Inform the patient of the identity of personnel in the operating room. This is especially important if product representatives will be present during the procedure. Failure to inform the patient could lead to a breach of privacy allegation.
- Prepare for some patients to insist on the attending physician performing the procedure. This request is often couched in the question, "You’re not going to let that student doctor operate on me, are you?"
Under these circumstances, the attending surgeon can:
- Comply with the patient’s wishes
- Refuse to participate in the patient’s care
- Convince the patient that it is in everyone’s best interest for the procedure to be performed by the whole team
Attending surgeons or anesthesiologists who do not inform patients or who imply that they will perform the operation (or give the anesthetic) personally and then delegate substantial parts of the procedure to house staff, are putting themselves and the institutions they serve in significant jeopardy. In the event of an untoward outcome, even when a proper consent form has been used, such cases are very difficult to defend. Therefore, the central issue is to make absolutely certain that documentation in the patient’s chart accurately reflects disclosure made to the patient prior to treatment. In a teaching situation, the consent for treatment should always include the resident staff of the institution as well as the attending physician.
Updated: September 1999
Originally published: April 1990
About the Author
Mark Gorney, M.D., F.A.C.S., clinical professor emeritus of plastic surgery at Stanford University, is a founding member of The Doctors Company. Dr. Gorney, the company's medical director for 18 years, is now governor emeritus and senior consultant in plastic surgery.
The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each health care provider in light of all circumstances prevailing in the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.