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MEDICAL MALPRACTICE
are filled in based on whatever procedure the patient is consenting to,
and many hospitals and surgical centers continue to do just that. That
way, there's also no risk that the wrong form will be given to the
patient. And yes, the generic form says the patient has acknowledged
discussing the condition, the proposed treatment, alternative treatments, and the risks and benefits. But the reality is that patients often
forget that they've signed such a form, let alone every detail that came
up in preliminary conversations with the physician. Contact between
the doctor and patient is often brief, and a year later, if a case is filed,
neither is likely to remember much of what was said.
In the absence of an explicit consent form, a jury may be asked to
choose between a patient who's experienced a complication about
which he recalls no warning, and a physician who says she customarily informs patients about all foreseeable risks and complications, but
who doesn't specifically recall what she told this patient. Needless to
say, juries don't always come down on the physician's side in such
instances. Note, too, that while the practitioner generally has the primary exposure for cases involving informed consent, the facility may
also have exposure on a vicarious liability theory.
Burden of uncertainty
How explicit should consent forms be?
The essence of a useful statement on operative risk includes a statement that all invasive procedures involve risk and some can be serious enough to cause serious disability or death on rare occasions. If
you include a list of major risks, including anesthesia complications,
hemorrhage, infection, scarring and adjacent tissue injury requiring
subsequent surgical management, you can also add a statement to the
effect that there may also be other risks, perhaps not yet even identified, which occur very infrequently. If one or more features of the
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