Rethinking informed consent

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We might be thinking about informed consent all wrong.

According to Toby Samson, an Associate and a member of the medical malpractice group at Bogoroch & Associates LLP, lawyers and the courts have focused on risk in the conversations around whether informed consent was given by a physician ahead of a procedure. Ms. Samson thinks that lawyers seeking justice in informed consent cases should explore whether doctors are telling patients about the alternatives to, and the benefits they’ll receive, from a procedure.

“Informed consent is actually a lot more than just for risks discussed,” Samson explains. “If you look at the Health Care Consent Act, it actually enumerates the things physicians need to discuss with their patients. Risk only makes sense when you're comparing it to something else. Risk is always comparative. In terms of proving that informed consent wasn't obtained by a physician, there are a lot of questions around the whole conversation.”

Managing partner, Richard Bogoroch, and Ms. Samson recently settled a case that revolved less around the risks of a procedure and more around why it was undertaken in the first place. In that case, there   was evidence that it was incumbent on the physician to address what would have happened had the plaintiff opted to do nothing, rather than undergo an invasive medical procedure, and the risks involved in that approach as part of the informed consent

The issue of whether a patient was provided with informed consent often comes down to credibility.  The advantage physicians seem to have, even if they take cursory notes around an informed consent discussion, is that they can explain their usual informed consent practice during the Examination for Discovery process. That explanation will usually be given a lot of weight by the trier of fact and may be preferred over the plaintiff’s evidence. That can make informed consent cases very difficult to prove.

Nevertheless, Mr. Bogoroch and Ms. Samson advance informed consent arguments in cases where patients never would have undergone a somewhat unnecessary procedure had their physician told them about what might happen if they elected not to undergo it. If a physician has totally failed to make a written record of the informed consent conversation, that also helps. However, the increase in electronic medical records is making that route less common.

“One of the things I find interesting about physician record keeping in any medical malpractice case is that a lot of the electronic medical records are actually prepopulated from templates,” Ms. Samson says. “So if you want to rely on that as evidence, it's an auto populated template. What does that mean?”

If malpractice lawyers want to pursue an informed consent argument, they should find out whether their client asked questions of the physician during the consent conversation. Ms. Samson explained that if a patient asks specific questions, the physician has a higher obligation to provided detailed information.

One of the most successful cases in which Ms. Samson was involved dealt with a pregnant woman set to have a big baby. Bigger babies are at higher risk for shoulder dystocia, where the baby’s shoulders get stuck during vaginal birth. In this case it resulted in a brachial plexus injury, nerve damage to the baby’s shoulders. There was compelling evidence that the injury would have been avoided with a caesarean section. The plaintiff attested that she repeatedly asked her doctor for a caesarean section – crucially, which contemporaneous nursing records corroborated. Ms. Samson cites it as an ideal informed consent case, where the focus is on an alternative procedure, involves patient questions, and is backed up by medical records.

“A lot of the conversations and case law around informed consent are focused on the risks discussion,” Ms. Samson says. “I think that benefits and alternatives are angles that need to be canvassed more thoroughly.”