The Role of Consent in Medical Negligence

Hi,

I hope that your April has been pleasant and that you have stayed safe amid the atrocities that have happened recently in Sydney. I pay my respects to any of the victims or people affected by the Bondi Junction Westfield Stabbings and the Fairfield Church stabbing this month.

First of all, I just wanted to share the statistics for our Medical Negligence Triage Service from March 2024.

In March there were 50 Medical Negligence Triage Cases lodged through our service! Out of those 50 cases, twenty-one of them requested Free Preliminary Opinions, fifteen of them proceeded to teleconferences, one of them proceeded to a full report whilst thirty-nine of those requests are still currently in progress.

Seven out of the Twenty-one Free Preliminary Opinions requested received a “negligence not probable” response from the specialist and did not proceed any further.

We are happy to have been able to provide the plaintiffs with the closure they need as well as helping them avoid the emotional and financial burden of proceeding straight to a report, only to receive an unfavourable/unsupportive opinion

This month’s topic is The Role of Consent in Medical Negligence

The Role of consent plays a big part when it comes to Medical Negligence claims. A consent form should always be provided to a patient before an elective surgery which outlines any potential risks and complications associated with the surgery for the patient to review and appropriately weigh up whether the potential risks and complications associated with the surgery are worth it.

Sometimes the situation is dire and due to the severity of the situation informed consent is not able to be obtained before proceeding with lifesaving surgery.

Informed consent is a vital part of providing medical care, however when it comes down to a person who has sustained an injury after receiving medical treatment, consent often becomes a deciding factor between what is considered negligent treatment, and what is unfortunately a risk or complication associated with the treatment.?

I’ve invited anaesthetist Dr Tamara Culnane to comment on the topic of the role of consent in negligence, primarily from her perspective as an anaesthetist, but also as someone who is privy to the surgery being performed.?

“John, you have a 3 percent to 6 percent risk of a perioperative stroke through ceasing your blood thinner for your atrial fibrillation, but you have bled into your kidney and that cannot successfully be managed by your surgeon without stopping the blood thinner temporarily”.

Is that a useful piece of information to give during the consent process with this patient? What is their current function, experiences, and experiences of family members? Will this just cause distress? How realistically can they helpfully incorporate that into their progress through this process??

Informed consent is a vital part of providing medical care which honours the autonomy and wishes of patients. As an anaesthetist, I am presented with a patient for whom a decision has already been made concerning the necessity of the planned procedure (with occasional exceptions where I may veto based on my assessments that risks are extreme!). My consent procedure is focused on what risks the patient trades against the risks of not proceeding with their procedure.?

They should be aware of risks that can reasonably be anticipated, and that are specific to them and their circumstances. I am often discussing and documenting risks in my anaesthetic consent process that are really related to overall care imperatives during the management of their medical issue – many perioperative complications are of multifactorial causation and not solely a consequence of “having an anaesthetic” (such as John above, whose blood thinner issue is part of a wider care imperative). But there must be a discussion of them by someone. There must be some reference to serious and unforeseen risks even for minor procedures in well patients. Reference the documentation “Other” in a list of risks on an anaesthetic chart.?

I think the consent process is fraught with questions.?

In my experience both as a clinician and with medical negligence work, documentation is often problematic. It is my usual practice to say, “I like to discuss some risks at this point – I like to think of them in two baskets – hard-day factors, and more serious risks” and then to proceed with a tailored list…and to address specific concerns and note a discussion…and the word “other”. The breadth of my consent discussion is tailored, based on my knowledge of the issues at hand and experience with patients’ needs for information and responses to that. It is part of the art of medicine. I can say what my usual practice is and hope for the support of colleagues who are present and know my usual patter should my consent be questioned. But what is documented? And what is understood in context??

Most anaesthetists will tell you of their concerns over consent for anaesthesia for urgent and emergency procedures, and labour epidurals (although studies have shown that women actively labouring are well placed to assess whether an epidural with its risks is appropriate for them, other studies demonstrate the low uptake of written material, recall and understanding of risks discussed or documented).?

In emergencies, there are time pressures and so many other concerns both for the patient and their medical team. Is less comprehensive information given and is that often appropriate? Can unwell patients or patients in acute pain participate as actively as they might or is it sometimes reasonable for a more paternal/maternal approach in that instance??

There are also those patients we frequently see who ask us to withhold a discussion of risks as they feel they may become more anxious if they are told of them. I have had many patients interrupt with a “talk to the hand” “Don’t tell me, I don’t want to know”. Do I absorb that risk as a potential failure of appropriate consent? Then there is the judgement of the clinician, also, of what is beneficial for a patient to hear and what may fracture trust and cooperation.?

There is the question of time management and the impossibility of conveying all possible adverse outcomes in a reasonable time frame, with comprehension and clarification – I cannot take my patient through medical school, training, and experience to give them the same context, in terms of decision making, concerning every potential salient risk. I might think, “I’d go ahead with this procedure if I was you despite the risks” – but I can’t say that.?

There is a large body of research in various medical settings about consent. Verbal consent, written information, documentation and comprehension and retention are common study focuses.?

In some studies, less than 90% of patients will recall they signed a consent document! In one study 39% of patients were not able to recount anything specific from the document they had signed.?

Of those given written information prior to a verbal consent process, as few as 7% of patients may actually read the written information in its entirety, and over 60% may not read any of it at all. Again, for those that do, there will not be the same framework, in terms of weighing the need to proceed with the risk entailed, that I have as a clinician. This is not an argument in support of paternalism/maternalism. Just an insight into what I hold inside for patients when I know it is never true that everything can always work out fine.?

Comprehension of the significance of potential complications to a particular individual is problematic. Stale analogy, but - I don’t understand what my mechanic says about my vehicle and haven’t a vocabulary to interrogate their advice.?

As anaesthetists, a large part of our preoperative assessment of a patient is a matter of risk stratification.?

In other words, we are going to need to crack on anyway (after appropriate planning and risk mitigation if that is possible) and our assessment, apart from guiding us as to how to go about the anaesthetic for a particular individual, is a guide for us as to the information about risks they should hear prior to consenting. Risks we may be able to mitigate, or perhaps not - and we may be discussing anticipating certain adverse events, monitoring for, and detecting them, rather than preventing them.?

Whatever the issues – and they differ for primary clinicians, in emergent settings, etcetera, documentation is important. However, it is important to remember that patients, however intelligent and articulate they may be, have a different context with which to interpret and stratify concerns over risks.?

Clinicians daily adjust their advice to a patient to go ahead with a procedure, or not, based on an intentional and caring assessment of whether treatment is overall, likely to be in a patient’s best interests and something they should reasonably consent to proceed with.

Spotlight on our Medical Negligence Specialists

Mr David Merenstein is a Breast Surgeon, Endocrine Surgeon (Thyroid, Parathyroid, Adrenal) and General Surgeon. He is qualified with MBBS and FRACS.

As an Endocrine Surgeon, Dr Merenstein has the specific expertise to comment on and assess surgery of the thyroid and parathyroid, missed malignancies due to untreated thyroid, and adrenal, endocrine, pancreas, carcinoid and other endocrine tumours. As a General Surgeon, Dr Merenstein has particular expertise in identifying the nature of early stage presentations arising from accidents or trauma.

Dr Michael El Moussalli is an experienced Chiropractor, with over 35 years in the profession. He has an interest in musculoskeletal conditions and has continued expanding his knowledge and training over the years completing a Bachelor of Applied Science, Fellowship in Chiropractic Clinical Science and most recently awarded a Fellow of the Australian College of Chiropractors.

He has a wide range of experience with medico-legal issues, providing expert opinions for both plaintiff and defendant cases, across Insurers, TAC and WorkCover. He has provided advice to the Chiropractic Registration Board of VIC on various issues including policy, clinical and disciplinary matters, as well as expert opinion on matters under investigation.

Dr Anthony Greenberg is a General Surgeon with specific expertise in gastrointestinal surgery and trauma surgery. He has been in surgical practice since 1979, and has been involved in the surgical training programs at Broken hill Base Hospital. He is a member of the Medico-Legal section of the RACS, and has attended RACS workshops for expert witness report writing.

Please do not hesitate to contact me with any queries, questions or concerns?via my direct line or email address.

Kind regards

Taylah McGregor

Medical Negligence Lead & NSW Business Development

Direct Line: (02) 9056 4471

Medical Negligence Bookings & Queries: (02) 8090 7616

[email protected]

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