Pandemic, Elective Care, Urgent Care, and Informed Consent

As I write this, we are reading in the news about potential quarantines and lockdowns. In addition, there’s talk about canceling all elective surgical cases, leaving hospital operating rooms empty so beds will be available to take care of those affected by COVID-19.
Have all elective cases been canceled across the US? Well, no.

Weirdly enough, while most people are hunkered down, there is a sizeable cohort who are capitalizing on their time off. Business is slowing and they’ve been told to work remotely from home. Now they have a window of time to undergo that procedure they have been putting off.

Does the fact that there is a background pandemic change anything?

Yes.

Any surgery is an insult to the body. It is stressful. It affects the immune response. You know that. Most of the time, the body heals as expected.

What if the patient gets COVID-19 while convalescing? Perhaps nothing would change, and it will be no different than if they got the flu.

But if the patient gets really sick, do not be shocked if a plaintiff’s attorney argues the patient was not reasonably informed about the increased risk of COVID-19 while the body was in a weakened state. I’m not suggesting a patient’s post-surgical state may cause exacerbation of COVID-19. I’m just prognosticating the legal argument.

So, what to do?

If your practice stays open performing elective surgical cases, just have the patient understand that any surgery increases the susceptibility to an infection, including the coronavirus. It’s unlikely to move the needle much. But that will depend upon the patient’s underlying health, the body’s reaction, and the viral load. These variables are not entirely predictable. As long as the patient is reasonably informed and the procedure is not unnecessarily risky relative to the background viral activity, the legal argument should be neutralized.

Note this is a moving target and each state and region is different.

Now, what about urgent and emergent cases? The pandemic has not slowed down the need for appendectomies and surgery for aortic dissection. Would a plaintiff’s attorney ever make a case if the patient contracted COVID-19 after such a procedure, whether or not there were long lasting sequelae? Are you really asking that question?

While the following additional consent language might not change the trajectory of a legal case down the road, it should not hurt.

I understand that I am undergoing urgent or emergent surgery. I understand the hospital is limiting the operating room schedule to such cases and elective cases have been cancelled. I also understand there is a COVID-19 pandemic in the background. No one truly understands how many persons have been infected and are carriers. I understand your staff and hospital are taking all efforts to prevent all patients from contracting the illness. But, even with diligent efforts, that cannot prevent all cases. And some patients are likely infected, but asymptomatic, before they even arrive at the hospital. I understand you the health care providers will do your best to prevent my acquiring or developing a COVID-19 infection. I understand if in the face of the pandemic, I do acquire such an infection, that the hospital and staff will reasonably work towards providing state of the art care.

Use good judgment and stay healthy. Let us know your thoughts in the comments below.

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Jeffrey Segal, MD, JD

Chief Executive Officer and Founder

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. Dr. Segal is a Fellow of the American College of Surgeons; the American College of Legal Medicine; and the American Association of Neurological Surgeons. He is also a member of the North American Spine Society. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal was a practicing neurosurgeon for approximately ten years, during which time he also played an active role as a participant on various state-sanctioned medical review panels designed to decrease the incidence of meritless medical malpractice cases.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

In 2000, he co-founded and served as CEO of DarPharma, Inc, a biotechnology company in Chapel Hill, NC, focused on the discovery and development of first-of-class pharmaceuticals for neuropsychiatric disorders.

Dr. Segal is also a partner at Byrd Adatto, a national business and health care law firm. With decades of combined experience in serving doctors, dentists, and other providers, Byrd Adatto has a national pedigree to address most legal issues that arise in the business and practice of medicine.