We continue with Part 2 of our series of articles penned by one attorney, an MD, JD, giving you a view of the world through a malpractice plaintiff attorney’s eyes. In this article, the author addresses “Taking a Defensible Consent”. This attorney is a seasoned veteran. The series includes a number of pearls on how to stay out of harm’s way. While I do not necessarily agree with 100% of the details of every article, I think the messages are salient, on target, and fully relevant. Please give us your feedback – and let us know if you find the series helpful.


By Dr. JD, a plaintiff’s attorney, practicing in the Northeast

4. Will including a documented discussion of a risk or complication protect me from a lawsuit if that problem actually then occurs, since the patient agreed to risk it?



Many doctors misinterpret a patient being informed of a potential problem and still electing to go ahead as an “assumption of the risk” situation that would then bar that patient from recovering for an injury incurred as a result. They believe the consent to be a “get out of being sued card”.


The actual fact is that just because something is a known complication or a possibility that was discussed, and which the patient indicated a willingness to risk in hopes of a greater benefit, does not mean that if that problem occurs that it was not the result of negligence. The fact that the patient was aware that it might happen is irrelevant because, in consenting, the patient accepted that sometimes even a perfectly done procedure may have a complication but did not thereby also consent to having the procedure performed negligently, causing the same complication.


Therefore, if the patient-turned-plaintiff can prove that the problem occurred as a result of a breach of the standard of care, that he or she knew that it might happen if the procedure were actually done perfectly does not restrict them from suing for damages that resulted from it.

5. How specific should I be ?


The consent that you obtain must leave you the room you need to maneuver clinically.


In emergency situations where the patient cannot speak for themselves and has no authorized proxy to speak for them, we assume that they would want what was necessary to be done. We therefore find “implied consent”.


However, when a patient gives consent for a treatment in advance, we return to the contract concept and apply the equivalent of the “four corners rule” of contract law: we only accept what is within the four corners of the written agreement, memorialized in the doctor’s note and the consent form itself, as having been actually agreed upon.


In practical terms, this means that a surgeon who only addresses Procedure X in the consenting process and has the patient sign a consent form referring only to Procedure X must actually then stop surgery if Procedure Y turns out to be preferable because while the patient did sign a surgical consent form that allows the surgeon to accommodate to an emergency, switching to Procedure Y is not an emergency.


In other words, even if Procedure Y is for the patient’s benefit, the surgeon was simply not authorized to do it by the patient.


The consenting procedure and the consent form should therefore both address any potential “springing” events that may require the physician to change plans while the patient is not in a condition to discuss the matter.


6. What should I put in my note to document the consent process?


This brings us back to the fact that the consent form or the patient’s signature under a note in your chart documents nothing other than the fact that something likely happened resulting in that signature being affixed to that piece of paper.


Relating what actually happened is up to you.


First, bear in mind that even the most honest patient relating the events years later to a jury or to a state medical board will simply not remember everything that you said.


Some doctors deal with that by recording consenting discussions. I regard that as excessive and, in many settings (states that do not permit such, consenting done in a hospital) it is not even possible.


A well-written note will suffice because intrinsic to being well-written is that it will be written in a way that conveys its veracity.


The first issue is therefore to avoid sounding self-serving. Using terms like “lengthy” and “complete” to describe the process are red flags to a later evaluator that that may be mere puffery, while, by contrast, “thorough” describes the process in terms of depth and will match the details that are then related.


Next, employ the dual rules of “If you do not write it down, it never happened” and ”If it is worth saying, it is worth writing down”. If your note says “The risks and benefits of the procedure were discussed” but not what those are, you have said nothing of any medicolegal worth and will be reduced to claiming that, well, you probably said X or Y but you can’t be sure – and when that is coupled to the patient swearing in the strongest terms that that they were never told, your case is over.


This brings us to the important fact that even though you will probably be using a template for your consenting documentation, it should never read like boilerplate.


Remember that the consenting process is one that is supposed to be geared to a specific patient making a decision and a note that sounds one-size-fits-all makes it very hard to later claim that you actually spoke to the patient with personalized attention.


Therefore, for example, do not just say “questions answered” or “concerns addressed”. Instead, say “”The patient asked about whether he would face any work restrictions after the procedure and was told that he needed to avoid any heavy lifting for at least two weeks” or “The patient’s concern that this treatment might affect her plans to start a family this year were discussed and she understands that it will likely require deferral of pregnancy for several months”.


You should also include any diagrams that you drew for the patient and append a copy of any educational materials you provided.


Remember that the longest time spent personalizing the documentation of a consenting procedure is far shorter than the shortest lawsuit or medical board inquiry.


If you have followed these simple rules, by the time that you reach the standard closing statement that “The patient indicated his/her understanding of the matters discussed and has agreed to the procedure”, that statement will seem to be just the obvious logical outcome of what you clearly and provably did.


There is no better defense than that.