|Letters - Issue 28|
Issue #28 (December 1983)
The recent article "How to Protect Your Rights in a Hospital" by Dorothy Gaev, published in the November Ecphorizer, is correct in spirit, but several of the positions taken are contrary to my experience as a medical malpractice and personal injury attorney.
The "blanket consent form" referred to in the article is definitely not legally "worthless." Although there are ways to "beat" the form, it is generally admissible into evidence and is often used by the attorney representing the hospital or doctor as one of the key pieces of evidence in the case. The practical effect of a signed consent form in a case is that it forces the patient to come up with some very solid evidence that they did not understand what (as the defense attorney will point out) was so very clearly written on the paper they signed.
The concept of "informed consent" does not mean that "your doctor must tell you everything about a medical procedure before you sign a special consent form." First, although the submission to the patient of a "special consent form" may be good medical practice, its usage is by no means universal, and the failure to use this form may not be wrong. Generally, the doctor does not have to engage in a lengthy medical discussion and does not necessarily need to cover the relatively minor risks inherent in common procedures. It is generally sufficient for the doctor to inform the patient when a procedure involves a known risk of death or serious bodily harm and to explain in lay terms the complications that might occur. Additionally, a doctor has to reveal to the patients such additional information as a skilled doctor would under similar circumstances. A patient has an absolute right to be given adequate information to enable him or her to make an intelligent choice. A recent case has also held that a doctor has a duty to inform the patient as to the risks if a certain procedure is not performed!
Ms. Gaev's statement that a person would be wise to refuse a test if the person's doctor will not come to the hospital room and answer all of the person's questions appears to me to be not only wrong but dangerous. Perhaps a better-reasoned proposal would be that the person ask to speak to another doctor on the staff who is familiar with the procedure and is willing to discuss the test or treatment to the patient's satisfaction. The assertion by Ms. Gaev that "treatment without permission is battery" is not necessarily correct, particularly in those situations involving emergency treatment or treatment when the patient is unconscious and no legal representative is available.
If the relationship between the patient and the doctor has reached the point where there is a lack of trust on either side then a change in doctors may well be in order. Additionally, any time a major procedure is considered, a patient should be made aware of the availability of a second opinion. The critical point is that the patient and doctor must be able to work as a team. If either the patient or the doctor feels that this is not possible, a change of physicians is in order.
The article is absolutely correct in advising a person who feels that they have been wronged to see an attorney, and I do not question for one second the right of any individual to bring charges against doctors and hospitals when they feel that they have been wronged. If I did not feel this way, I would not be representing plaintiffs in medical malpractice actions as I do. But I also feel that unfounded charges against physicians and hospitals, and unwise lawsuits, can not only be very expensive but can also have devastating effects, both emotional and economic, on the patient, the doctor and society.