Continuums of Care and Consent
Indeed, any expert on medical law will tell you that informed consent is a process—not an event.8 Though a hospitalist may not have secured the signature on a consent form, a hospitalist’s practice is as much a part of a patient’s ongoing process of “consent” as is that of the surgeon who performed the patient’s operation.
The American Academy of Family Physicians has adopted the following guideline: “During the period of hospitalization, decisions regarding care, consultation, admission, transfer, and discharge should be the sole responsibility of the inpatient care physician in consultation with the patient and, as appropriate, the patient’s family physician and/or family members.”13 The times when patients actually sign informed consent documents are junctures in the continuum of consent that covers a lifetime healthcare experience. Hospitalists, then, are involved in informed consent from patient assignment to patient discharge.
“And the manner in which the process is conducted is at least as important as substantive information given,” says Dr. Rich. “A skilled and experienced physician can give any patient two descriptions of the procedure that they’re recommending,” he says. “[After o]ne, couched in a certain way, but not inaccurate, the patient would say, ‘Well, of course, I want that.’ And if the physician gives it in the other way, still accurate, the patient would say, Well, who would want that? And it all has to do with the terms you use, your tone of voice, your body language, the setting in which you provide it. … All that can profoundly shape the informed consent process. And it is not something that physicians are routinely taught.”
Because the process of informed consent is ongoing, discussions may continue for several sessions over a length of time before a patient decides to undergo a treatment. This gives patients more time to think of questions or concerns they may have. Addressing those concerns is a crucial part of the process.
“The reason that’s important is that you always want to offer and document that you have an opportunity to address what the patient’s questions were so the consent is truly informed,” says O’Rourke. One-way delivery of information is not equivalent to the dialogue implied by the term “informed consent.” “It is vitally important to ask, ‘What other information can I give you?’” he explains, especially because informed consent cases often deal with complications that develop after surgery.
The risks of procedures mentioned in informed consent discussions comprise a special category, says O’Rourke, “because there are some things that are not easily foreseen.” Some complications are not within the range generally anticipated after a procedure. “And the way the law works is that you don’t have to imagine the million-to-one shot [complication]; you would review the risks in terms of what a physician should disclose … in terms of significance.”
Physicians are judged by how well they informed patients of the risks as assessed by a community standard of what reasonable practitioners in the community say the risks are, he says. Physicians need to be knowledgeable about the risks of the procedure based on the medical literature, their training, and their discussions with colleagues.14
“Oftentimes, in order to give and get full informed consent, we use the knowledge from our subspecialty consultants,” says Dennis Manning, MD, FACP, FACC, a hospitalist and director of quality in the Department of Medicine and an assistant professor at the Mayo Clinic College of Medicine, Rochester, Minn. “We ask them, ‘What do you think the risks are?’ We might have to pick their brains in order to become fully aware of the hazards in a particular patient.”