The process of obtaining informed consent from a patient is among the thorniest legal issues an otolaryngologist faces when managing surgical procedures. However, Jeffrey Wolf, MD, believes the process can be easy to start; specifically, he recommends that physicians begin by looking a patient in the eye, at his or her level.
“Something I always do when I’m talking to a patient about surgery … I always sit down,” said Dr. Wolf, associate professor and associate chair of clinical practice of otorhinolaryngology-head and neck surgery at the University of Maryland School of Medicine in Baltimore. “I’m never standing; I never want them to feel like I’m rushed. I always sit down, because if you sit down for two minutes, they feel like you spent a lot more time with them than if you stood up.”
Time and effort might be the two most important factors in establishing a rapport with a patient that helps ensure that the informed consent process works as intended, Dr. Wolf said. And informed consent is just that—a process that needs to be honed to make sure patients are truly informed.
Why is informed consent so important? Research presented in 2007 found that between 1985 and 2005, 37% of all malpractice claims involving endoscopic sinus surgery (ESS) also involved informed consent (Am J Rhinol. 2007;21:584-590). Furthermore, the researchers found that 16% of all otolaryngology malpractice claims centered on informed consent. More recently, of the 48,589 malpractice claims reported to the PIAA (formerly known as the Physician Insurers Association of America) Data Sharing Project between 2010 and 2014, 12,865 (28%) resulted in payment to the plaintiff. Additionally, 740 named an otolaryngologist in the claim, with 298 (40%) of those resulting in payment to the plaintiff.
“It is higher than what the broader community is, which prompts us to ask what variables contribute to these cases resulting in higher payment,” said Divya Parikh, MPH, PIAA’s vice president of research and risk management.
The numbers only get worse for surgical procedures that involve the nasal region. Malpractice claims reported to the PIAA for these procedures over the five-year period from 2010 through 2014 totaled 311, and approximately half of those resulted in payment.
What Is Informed Consent?
The medical-legal implications of informed consent are often misunderstood, according to Leigh Sowerby, MD, assistant professor in otolaryngology-head and neck surgery at Western University in London, Ontario, in Canada. “Traditionally, in medicine, we think of informed consent as a piece of paper that the patient signs, but that’s not what informed consent is,” he said. “Informed consent is actually the discussion around surgery and the process by which that piece of paper is signed.”