Orthopedics: Informed Consent

Robert Morton, ARM, CPHRM, Director, Patient Safety, The Doctors Company, and Dana Faber, RN, BS, Patient Safety/Risk Management Account Executive, The Doctors Company.

As the first medical malpractice insurer to establish a patient safety department, The Doctors Company remains the leader in developing innovative tools that can help you reduce risk and keep your patients safe.

Strive for Open, Patient-Centered Dialogue

Analyses have identified inadequate informed consent communication between the surgeon and the patient/family as a top factor contributing to claims against orthopedists. The informed consent discussion requires an open dialogue to afford the patient an opportunity to ask questions and voice concerns.

Consider the patient’s needs and priorities when discussing healthcare options. Try the following communication techniques to achieve a patient-centered informed consent:

  • Use easily understandable terms.
  • Consider the patient’s culture, education, lifestyle, and personal preferences.
  • Use visual aids, such as brochures, anatomical models, and video demonstrations.
  • Ask the patient what he or she wants as you discuss management strategies, and allow the patient to express concerns about the treatment.
  • Validate and restate for clarity the patient’s needs, and adapt the treatment plan accordingly.
  • Ask the patient to explain his or her understanding of the procedure and expected results.
  • Invite the patient’s questions by asking, “What questions do you have?”
  • Include the family/support person in the discussion when available.
  • Follow up with a phone call the day before surgery.

Partner for Shared Understanding

Establishing patient understanding is critical to ensuring valid disclosure and patient consent:

  • Facilitate a dialogue that validates the importance of the patient’s expectations for a good outcome.
  • Make sure that expectations—the patient’s and yours—are well aligned. Accomplish this by discussing the expected benefits of a surgical outcome, such as decreased pain and improved mobility, as well as any limitations. For example, even with a good outcome, the patient might not be able to bend the knee as before. This discussion is in addition to disclosing the procedure’s inherent and material risks, benefits, and alternatives, and the risks of doing nothing (refusal).

Complete Disclosure

Patients can feel betrayed if an unexpected complication or adverse outcome occurs and it was not disclosed or was inadequately addressed. The top five major injuries in claims against orthopedists are infection, pain, malunion/nonunion, nerve damage, and death. Complete disclosure informs the patient how each of these injuries (and other risks of the procedure) might occur and what actions the patient and surgical team can take to reduce risk.

  • Make no guarantees. During the informed consent process, it is prudent to discuss the most serious risks of the procedure, even when the likelihood is relatively low. If a complication occurs, the patient and family are less likely to view it as the result of negligence.
  • Avoid exaggerating reassurances that a particular complication should or will not occur. If a complication is encountered, a previous complete and honest conversation with the patient/family can be recounted for a shared understanding of the situation.

Use Consent Forms Specific to Your Practice

At the time the patient makes the decision to have the procedure, execute procedure-specific disclosure and consent forms printed on your own letterhead. This should be done in addition to completing the required hospital or surgical facility forms that are not specific to your practice. For sample forms, visit our Informed Consent Resource Center at www.thedoctors.com/informedconsent.

Although the informed consent doctrine remains dynamic, building a skillset that is patient-centered in the orthopedic specialty will enhance the therapeutic relationship while mitigating risk in the process of informed consent.

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 healthcare 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.

J9309 07/13

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