Coding
Correction
On page 28 of the November NEWSLETTER,
in Table 3 of the “Practice Management”
column, the 2003 ASA Base Unit Value
for code 00542 was mistakenly printed
as “5.” The correct
Base Unit Value for code 00542 is 15.
We apologize for any inconvenience.
The updated table can be found
at: <http://www.ASAhq.org/Newsletters/2002/11_02/pracMgmt.html>. |
|
Should anesthesiologists obtain a patient’s
“informed consent” themselves, or should
they rely on the hospital staff or surgeons to collect
patient signatures on consent forms? This question
has resurfaced recently in several contexts, including
the 2002 meeting of the Committee on Quality Management
and Departmental Administration in Orlando, Florida.
The committee is preparing to publish the 2003 edition
of the
Manual for Anesthesia Department Organization
and Management (MADOM). Previous editions have
contained a discussion of informed consent that
includes a recommendation for separate anesthesia
consent forms as well as sample forms. The appropriateness
of that recommendation is the topic of this month’s
column.
The Separate, Specific Anesthesia Informed
Consent Form – PRO
The patient’s signature on a consent form
provides written evidence that the patient has been
informed of the risks of the recommended procedure
and of alternative options and that he or she has
consented to undergo the procedure based on that
information.
A signed consent form is not indispensable unless
required by a particular state’s statutes
—
it merely documents the informed consent
process. This is very similar to the function
that documentation serves in establishing compliance
with Medicare billing rules. It provides evidence
that physicians did what they claim to have done,
but it does not substitute for the communication
with patients (or for the immediate availability
of medically directing anesthesiologists).
The informed consent process involves educating
patients or their representatives in case the patient
is unable to give valid consent. If consent has
not been given or if the scope of the consent given
has been exceeded, e.g., by the performance of additional
procedures, then the patient may bring a lawsuit
for battery (the traditional law school definition
for battery is an “unwanted touching.”)
Far more commonly, a medical malpractice lawsuit
will include a claim based on the inadequacy of
the information provided regarding the risks of
the procedure.
What information will be adequate, then?
In most states, the courts have adopted the “reasonable
patient” standard and require the physician
to disclose any information that a reasonable patient
under similar circumstances would want to know in
order to make an informed decision. For example,
a physician who recommended radiation therapy for
a lung cancer patient told her that the radiation
was a “midplane dose” but did not inform
her that the treatment involved a 1-percent to 2-percent
risk of permanent injury to the spinal cord. In
that litigation, the Tennessee supreme court explicitly
adopted the “objective” reasonable patient
standard and rejected the minority view that considers
whether, subjectively, the individual patient would
have consented to the procedure if fully informed
of the risks.
For the “reasonable” anesthesia patient,
material information will probably include alternative
anesthesia procedures and the major risks and benefits
of each. If moderate sedation is planned, the possibility
of conversion to a general anesthetic should be
disclosed. The anesthesiologist who will be supervising
nurse anesthetists, anesthesiologist assistants
or residents providing the care should inform the
patient of that fact. The laws and court decisions
governing the nature of the information to be discussed
with the patient and the specific form of documentation
of the patient’s consent vary from state to
state.
Do you wish to rely on the surgeon or the hospital
staff to provide all of the above information in
a standard consent form? Even if the form were
to list every conceivable risk, which does not seem
practical, the patient may ask questions to which
the surgeon or hospital staff cannot give an accurate
answer. In a Pennsylvania appellate court case,
an esophageal cancer patient who suffered permanent
lung damage attributed to a leak at the surgical
site had asked the surgeon about his clinical experience.
The surgeon failed to reveal that this was only
the fifth time he was performing the procedure in
five years. Although there is no duty to inform
all patients about one’s qualifications, the
fact that this patient had asked made the information
material and relevant.
There is no one-size-fits-all set of information
that can be reduced to a single preprinted form,
which is why the form should document that all
material risks have been disclosed but state
clearly that the printed list is not exhaustive.
Because the form is secondary to the actual informed
consent process, it would make sense to obtain the
patient’s signature on a specific anesthesia
consent form following the oral educational session
and discussion with the patient. The form should
indicate that the patient had been given a satisfactory
opportunity to ask questions. The anesthesiologist’s
own signature would document that he or she had
explained the necessary information.
Beyond the legal protection conferred through a
thorough informed consent process, many experts
emphasize the relationship benefits. Patients who
have had a talk with the anesthesiologist that leaves
them feeling properly informed are less likely to
bring a lawsuit even if the outcome of the procedure
is not what they expected. Having had face-to-face
contact may also help a patient’s understanding
of why he or she has received a bill from the anesthesiologist.
Practice tip: Some practices have
created videotapes explaining anesthesia techniques
and risks. Again, the anesthesiologist should see
whether the patient has any questions or needs additional
information, but a videotape or other educational
tool may shorten the process and at the same time
give the patient a better understanding.
Exceptions: Consent need
not be obtained if there is a true emergency. There
also is an exception for “therapeutic privilege,”
a concept that would protect the physician who reasonably
believes that disclosure would prevent the patient
from making a rational decision or would cause psychological
damage to the patient. Finally, if the patient states
that he or she does not want information on the
risks of anesthesia, there is no need for it to
be provided. The anesthesiologist should carefully
and contemporaneously document the circumstances
if informed consent is not obtained.
Using a Specific Anesthesia Consent Form —
CON
The argument against using a separate and specific
anesthesia consent form boils down to this: some
anesthesiologists are unclear on the difference
between a signature on a form and true informed
consent. When they refer to “informed consent,”
they mean a piece of paper in the patient record.
Lawyers working with these anesthesiologists believe
that it is safer to have no anesthesia consent form
if that is what it takes to make their clients personally
discuss the risks of anesthesia with their patients.
Admittedly, the informed consent discussion takes
time and may seem burdensome. An anesthesiologist’s
individual experience may suggest that the discussion
makes no difference.
Where it does make a difference, however, the difference
can be huge. Both the courts and patients themselves
are increasingly insistent on patients’ rights
to informed participation in their medical care.
Although legal claims based on negligence in sufficiently
informing the patient of the risks are almost always
appended to a claim of medical malpractice, in one
recent California case, lack of informed consent
was the sole basis for a $6 million verdict. A 5-year-old
patient had suffered bilateral thalamic infarctions
during a cranial tumor resection and became mute,
incontinent and blind. These were indeed risks of
the procedure, and the patient’s parents did
not challenge the neurosurgeon’s technical
performance. Rather, they sued because the neurosurgeon
had not mentioned the specific risks of stroke or
blindness and because he had not advised them of
the alternative of a subtotal resection. Nine out
of 12 jurors felt that the parents would have sought
a second opinion if they had been fully informed
and that they would then have chosen the less aggressive
alternative, even though it could not have been
curative.
Last month, the ASA Washington Office received a
long, articulate and detailed letter from a patient
who was extremely unhappy with the lack of information
provided regarding his anesthesia care in a major
teaching hospital. The otolaryngologist had indicated
to the patient that he would receive a local anesthetic
for a routine intranasal surgery that would take
just half an hour. Apparently the patient had a
morbid “fear of general anesthetic specifically
and unconsciousness in general” but did in
fact lose consciousness. Discussion with the anesthesiologist
occurred in the operating room and was limited to
a statement regarding “one cocktail now and
one in about a minute.” There was no mention
of a general anesthetic, its risks or the possibility
of postoperative nausea and vomiting, which were
severe and shocking. The letter stated that had
the patient been informed that general anesthesia
would be administered, he would have declined the
procedure altogether.
This letter presents only one side of the picture,
and one hopes that the anesthesiologist and that
practitioner’s entire department were less
abrupt and cavalier than is alleged, preoperatively
and postoperatively, about the patient’s and
family’s concerns. Nevertheless, the patient
perceives that he did not receive material information,
and he remains very angry with the anesthesiologist
and the hospital. A lawsuit may yet result, even
though there appear to be no lasting physical effects
of the anesthetic.
This is precisely what the anesthesia informed consent
process and the discipline imposed by its documentation
are intended to prevent.
Source Material:
• Ashe v. Radiation Oncology Associates,
9 S.W.3d 119 (Tenn. 1999).
• Duttry v. Patterson, No. 199
MDA 1999, 1999 PA Super 250; 741 A.2d
199 (Pa. Super. Ct. 1999).
• Professional Liability Newsletter
Vol. 32, No. 4 (July-August 2002). |
|
| Practice
Management Conference Scheduled |
| January 31-February
2, 2003 — San Antonio, Texas |
The complete program and registration
materials for the annual ASA Conference
on Practice Management are available
on the ASA Web site <www.ASAhq.org>
under the “What’s New”
section on the homepage. New survey
data on creative scheduling, Health
Insurance Portability and Accountability
Act compliance, the best setting for
a pain medicine practice and information
on negotiating hospital stipends are
among the many interesting subjects
that will be presented. The Committee
on Practice Management warmly encourages
you to attend.
Please note that Jody Locke, who will
speak on “The Net Collections
Fallacy and Other Performance Metric
Myths,” is a vice-president with
Anesthesia Business Consultants, LLC.
His previous affiliation was listed
erroneously in the program brochure. |
|