On balance, choice is a good thing. It’s generally better to have some options, than no options, or even a single option. But it comes with a price.

If I go to a fancy restaurant with my wife, my ideal menu is limited to several selections. I don’t need ten pages of choices. I do not want to hear about fifteen specials. I can’t even process 50% of the flavors and spices articulated by the server, much less remember them and weigh them by preference. A shorter menu works for me. If there are a gazillion items, I scan the page, identify the first option that works for me, select it, and then WAIT.

Why wait?

Because my wife not only likes a long extensive menu, she loves it. She mulls over each and every selection, pontificating on the pros and cons of each meal. Weighing them in her cortical spreadsheet. Then, of course, she wants to hear about every special. And I mean EVERY special. Then, the inevitable questions. Finally, is there a way to substitute X for Y? Is that extra or included?

The longer the menu, the lower my blood sugar will dip.

I’m satisfied by a reasonable choice. My wife is satisfied with the optimal choice.

Segueing to informed consent.

On balance, patient-informed consent is a good thing. If a procedure is elective, and the patient is truly educated on the risks, benefits, and options, shouldn’t they be the arbiter of what works for them?

Sure, but the patient will (generally) never have the same fund of knowledge as the doctor. Even if they’ve spent time on the Internet.

So, much of that decision will be tailored by the doctor’s view of the world. And the doctor’s analysis of risk. Yet, all patients are different. Some accept rare risks. Others do not. Who will best know the patient’s risk tolerance? Presumably, the patient. But, if the patient can’t actually visualize the risk, how good will their assessment of risk tolerance actually be? Understanding risk and risk tolerance is often built on a foundation of quicksand.

Let’s go through different examples.

Informed consent for a facelift. The patient has done her homework. She understands the procedure, the cost, post-op recovery, potential complications, and the likelihood of success. She takes her time to think about it. Perhaps she goes to three surgeons and hears the same pitch. In most cases, the surgeons can pat themselves on the back and conclude the patient is informed. She made an informed decision.

What if she develops a permanent facial nerve palsy? It was listed as one of many complications in the fifteen-page document she signed. The patient placed her initials next to that itemized risk. In theory, she was informed. But did she really understand what it would be like to have permanent facial asymmetry – even though there are options for facial reanimation? How can anyone really know?

And that is an elective case, where most patients do well, and their expectations are met. Those are the easy cases vis a vis informed consent.

Next up. A 90-year-old patient on chemotherapy develops a low platelet count and intracerebral bleed. She’s unconscious. And guess what? There’s no advanced health directive. She’s transported by EMT and arrives in the ER. The ER physician meets the daughter. “Do you want us to intubate Mom? If we don’t, she’ll die. I need your consent. And you have to decide now.”

Some daughters will say yes. Some will say no. They will be told to imagine what Mom would want. The conversation will continue “she’s on chemotherapy for a condition that cannot be cured. She has an intracerebral hematoma, so even if Mom is intubated, the clot will need attention. She may need surgery. Even with surgery, she may never regain consciousness. And if she does open her eyes, she may never walk or talk again.  But she may. What do you want to do? I need an answer. Now.”

How does any family member process that? They do their best. And the decisions they make are generally reasonable. But the family member may second guess their decision to the end of time.

“Did they really do what was best for Mom? Did I just sign Mom’s death warrant? Did I give Mom the gift of a comfortable and humane passing? I wish Mom had signed an advanced directive. But she would have appointed me as her healthcare power of attorney. Not sure much would have been different. How do I know I made the right choice?”

And then what about even more arcane scenarios?

Imagine a car hitting a pedestrian. It throws him in the air, and he breaks every bone in his body. He’s young and healthy and starts to recover. But he has a brainstem injury. Will he regain consciousness? Will he follow commands? Hard to say. Two weeks post-injury, a state of art rehabilitation facility has a bed available. It’s 6 hours away by car. These beds are like gold. Rare and valuable. If a spot opened up, you’d want it.

Here, the patient’s wife has to make decisions. All decisions. She’s become the de facto healthcare power of attorney. Here’s the latest demand for a timely decision. Transfer by jet or by ground ambulance. By air, the trip will take 1 hour. The patient still has to get from the hospital to the airport, and then from the next airport to the rehab center. By ground, it’s 6 hours, door to door. By air, the trip should be smooth. By ground, there will be potholes. It will not be a comfortable ride. If there’s a medical problem in the air, the plane will need to get to the ground ASAP. Perhaps it will be at the intended destination. Once you land, you might need to divert to an acute care facility. If you go by land, an in-transit problem could be handled by any number of facilities along the way.

And cost. Since it’s considered an elective transfer, health insurance does not cover the trip. The owner of the car which hit the pedestrian has a generous insurance policy. There’s going to be a pile of cash available to cover this patient’s needs. But it is still a finite amount of cash. Jet transport costs more than ground transport. Potentially by several hundred thousand dollars. The financial choice is whether money should be spent on the less expensive versus costlier mode of transfer or should it be optimized for future needs. How can anyone know the answer to this? The patient’s wife wants to make the best decision for her husband. She also doesn’t want to drain the bank if the incremental benefit is minimal. And the clock is ticking to make a decision.

So, while choice is good, is informed consent real? Is it an illusion? Perhaps it is the best we can do.

What do you think?

Medical Justice provides free consultations to doctors facing medico-legal obstacles. We have solutions for doctor-patient conflicts, unwarranted demands for refunds, online defamation (patient review mischief), meritless litigation, and a gazillion other issues. If you are navigating a medico-legal obstacle, visit our booking page to schedule a free consultation – or use the tool shared below.

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. Byrd Adatto was selected as a Best Law Firm in the 2023 edition of the “Best Law Firms” list by U.S. News – Best Lawyers. With over 50 combined years of 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.