Dear Academic OB/GYN,
I am new to reading your blog, but really enjoying it! The issue of “informed consent” is really a unique issue for us here in the United States. (For my blog readers, you can see Academic OB/GYN’s post on the surgical consent form which follows below or head over to her blog at http://academicobgyn.com/2011/06/20/on-the-surgical-consent-process/).
I’ve worked in Russian hospitals (as a midwifery apprentice and as an anthropologist) and in Canadian hospitals (as a doula) and their approaches were so very different in tone and feeling! There was no informed consent process in the Russian hospitals (in 2000-2001) and the process in Canada felt much more like what you describe at the end of your post: a friendly chat.
That said, I think it is a fault of how we all in America — doctors and patients, professionals and laypeople — imagine medicine that creates a problem. Doctors are people (I love reading books like “How Doctors think” or “Complications” to remind me of that!), but sometimes we all pretend that doctors are really computers. We do not expect human indecision or unknowing or, God forbid!, human error. We expect perfection. This is true in many arenas, not just medicine. Our culture is very black and white. If something goes wrong with anything, someone must be blamed. Shades of gray or the idea of joint responsibility don’t fit our cultural expectations so well.
Finally, I am not sure that all doctors are capable of talking the way you describe. Some are; many are not. It is not just the moment of getting a signature on an informed consent form that matters. How doctors talk (or don’t talk) with patients matters all the time.
At the last birth I attended as a doula, a medical resident took over from an experienced midwife when the baby’s heartrate was non-reassuring for too long. She never introduced herself to the woman giving birth or her husband. She cut an episiotomy and put in an internal monitor and started using a vacuum with not one word of explanation. There were several seconds of silence in between contractions, so it was not because of lack of time. My client will never see that doctor again in her life. That doctor will never know how her treatment felt to those of us in the room. But as the doula, I have listened to three conversations in which my client is trying to understand what happened to her “beautiful birth” in those minutes. With just a few words, I think my client could have had it all: medical help in a possible emergency AND a beautiful birth.
I do not even entirely blame this doctor. We have created a medical education system that penalizes many doctors if they try to be well-rounded, emotionally-intelligent, full human beings. Probably, if this doctor experienced a major obstacle in her personal life in her first year as an intern, she was not going to be given empathy, kind words, time off to relax and rejuvenate, understanding, etc. She probably faced a spoken or unspoken expectation to tough it out. What we reap as a culture, we will sow.
In Russia, there was certainly a divide between doctors and patients. But in one area, I watched with amazement at how quickly the barriers fell down. That was in the area of pharmaceutical treatment. Diagnosing was the purview of the physician; but treatment was often a mutually-negotiated conversation that occurred between equals. Why is that? Well, most of the doctors and patients shared a common, deep knowledge of herbs. Everyone at my birth hospital seemed to share a tacit understanding that herbs were the preferred method of treatment, if possible, and pharmaceutical drugs (like antibiotics, painkillers, etc.) were only a second option.
The entire culture expects urban Russians to spend time gardening and foraging in forests (for mushrooms, herbs, etc.) as a normal part of life. It’s the best way to spend a summer weekend in Russia! That ubiquitous hobby has a strong impact on the way that doctors and patients interact in the maternity ward. Many Americans hear me talk about this and immediately jump to attack the Russian medical system. I know there are problems there (as there are here), but my experience was in a beautiful, well-run birth hospital with intelligent, capable doctors, midwives, and nurses that boasts excellent outcomes. And, in this one arena at least, there was a model for doctors and patients being able to discuss treatment options as equals.
Those consent forms, I think, are supposed to remind patients that they share in a joint responsibility with their caregivers for their own healing. Perhaps they also remind physicians that interventions are never risk-free. But in the end I believe that real conversations between two real people are the best protection: from lawsuits, from errors, from decisions we later regret. Legal documents are a mere shadow of that human connection.
Here’s the blog post:
Today I saw a patient for a preoperative visit and went through the ritual of “informed consent” and the signing of the surgical permit. We had decided to do a hysterectomy to treat her problematic fibroids, and she very much wanted to proceed. Having discussed the alternatives, we now had to go through the legal ritual of the surgical consent.
As usual, I discussed what we could expect to gain from the hysterectomy. There was a 100% chance that she would no longer have any bleeding, and a very strong chance that any pain that originated in her central pelvis would get entirely or mostly better. Anemia that resulted from the bleeding would improve. Other symptoms, like urinary pressure and frequency, and lateralized pelvic pain, would likely improve though it is not as strong a likelihood as the other symptoms.
We also discussed the risks. “You could have bleeding during the surgery, potentially enough to need a blood transfusion before or after surgery. You could get a communicable disease from a blood transfusion. You could develop a wound infection or abscess, which sometimes is easy to treat and other times quite complicated. Anything in the abdomen could be damaged during the surgery, such as the bowel, bladder, ureters (“which carry urine from the kidneys to the bladder” I always say), blood vessels, or other structures. Anything damaged can be fixed at the time by myself or a consultant. There is a possibility something could be damaged but we do not recognize it at the time, or that there is a delayed injury. If this occurs you might need further surgery, antibiotics, or hospitalization. Though extremely rare, you could die or be injured from an unforeseen surgical complication or complication of anesthesia.”
At this point she looked white as a sheet, as usual, and then I tempered with “but all of this is extremely unlikely, less than 1% of cases for major issues, and I have to explain it all for legal reasons. I am well trained to do this surgery and will do my absolute best for you.” I answered her questions, the consent is signed, and we had our pre-op. While this consent process is quite standard, it just seems a little ridiculous to me. Its a bit like asking your neighbor bring your son home from school, and having her say “we may get hit by another car, I might run a red light, we may run out of gas on a train track, there might be a meteor that hits the car and kills us all…. but don’t worry I am a good driver and your son will be fine.”
The fundamental reason we do these consents is that we believe that in some way they will protect us in a lawsuit if something bad happens. For example, let’s say somehow I transect a ureter in my patient’s hysterectomy, I can say “See – I said this was a risk of the surgery… it wasn’t my fault!”
But isn’t that a bit ridiculous? Is telling somebody that something bad could happen actually a defense if that bad thing does happen? In some cases a problem is truly random, such as the development of a pelvic abscess after a hysterectomy, but in other cases it is not. There is almost no situation in which I could cause a ureteral injury and have it not be a surgical error. If it happens, I did it – and it was a mistake. Ureters are damaged in about 1% of hysterectomies, but its not like they magically get injured in 1% of cases. In 1% of cases the surgeon makes an error.
When I was a resident I worked with one attending that thought along these lines as well, and had a very different consent process.
“We are doing X surgery because of X. I’m a good surgeon, and think I can do this surgery without a problem. You need to sign this paper or the hospital won’t let me operate. I think it will go well, but anything can happen, and if it does and you think its my fault you can still sue me.”
This all seemed very glib the first time I heard it, but I have to say I have always had a lot of respect for that attending’s honesty. He was telling it like it really was, even though it wasn’t necessarily the smoothest way to go about it. He was indeed a very good surgeon. His partners thought he was a bit nuts, though.
The trouble with the standard consent process is that it doesn’t deal with the real issue; errors do occur, and physicians cannot be perfect. By naming error-driven events as statistical occurrences, the process supports an expectation that surgeons will never make errors, and thus the corollary that any surgical error is a de facto breach of physician’s fiduciary duty.
Every time I do a standard consent process, I think about doing it differently. Perhaps something like this:
“We are doing X surgery because of X problem. I am well trained to do this surgery, and think I can give you a great chance at an good outcome. Your surgery is something I know I can do well, but I cannot guarantee that you will not have a problem. I can only guarantee that when I do your surgery I will be well rested and that my team and I will do our best.
Sometimes when bad things happen during or after surgery it is a random event. There are certain things we can do to reduce these events, and we will do those things. Another kind problem can be because a member of my team or I makes a technical error. While I do my best to operate perfectly, it is possible that I could make a mistake. I have occasionally done so in the past, and will no doubt do so again in the future. As I have always learned a great deal from these rare mistakes, I hope to think I will never make the same error twice. Fortunately, almost every error is recoverable, and I know how to make those recoveries. If we have a problem, I will be there to fix that problem and help you through whatever recovery is necessary. I will explain the problem to you, and if I know, I will explain how it happened.
(now sign this paper or the hospital won’t let me operate )”
I often wonder if the common legalese consent process we go through actually protects us. Ultimately, we are bound to meet the goal of “The Standard of Care”, and we don’t get to define that standard on our consent form. Lawyers love to say that this standard is readily viewable in any textbook, but in reality its pretty grey. The exact definition changes from state to state, but usually is defined as what another reasonably practicing physician of similar training and situation would have done in the same situation. Fortunately, reasonably practicing physicians of similar training and situation also make mistakes from time to time, and usually lawyers and juries recognize that. As long as one recognizes the mistake and does the right thing from there forward, usually one has a reasonable defense.
So let’s just say that up front. We are well trained, and we do our best. If we screw up, we’ll let you know that, and we’ll fix it. Now sign here.