Malpractice Consult

Lee J. Johnson, JD

Answers to your questions

Documenting refusal to consent

Q: How much should physicians do to document poor patient compliance or refusal to consent to recommended treatments and procedures?

A: The short answer is more, lots more. Many physicians are such poor record-keepers that insurers are often forced to settle cases doctors should have won. Risk managers, defense attorneys, medical societies, and carriers have long preached the gospel that you can never document too much, but some physicians see us as scolds and shrug off the advice.

In one recent case, the plaintiff alleged that an ob/gyn's delay in performing a cesarean section resulted in severe neurological damage to her baby. The physician testified that he'd repeatedly recommended performing a C-section, but the patient was determined to give birth "naturally." At trial, the patient denied that she was told about the risks of waiting too long. The physician hadn't documented the conversations. The trial became a credibility/sympathy contest between a busy physician and a forlorn mother with a child who requires lifetime institutional care. The case ultimately settled for $12 million.

Mentally sound adults have the right to refuse any treatment as long as it's an "informed refusal." Make sure that you tell patients of the risks, benefits, and alternatives to a treatment or procedure, including the option of conservative or no treatment. Document the conversation.

If the patient still refuses the treatment or is otherwise noncompliant, ask her to sign a "refusal of consent" form. The very act of presenting such a form often helps focus the patient on the importance of what you're recommending. No one can guarantee that you won't be sued if you follow these recommendations, but many plaintiffs' attorneys won't accept a case where the patient has signed a refusal of consent. Here's a sample form.

Refusal Of Consent

I have been advised by Dr.________________________________ that the following treatment,_______________________, should be given to me or the named patient (if a minor):________________________________________________________

Dr. ____________________________ has fully explained to me the nature, purpose, risks, and benefits of the proposed treatment, the possible alternatives thereto, and the risks and consequences of not proceeding. I nonetheless refuse to consent to the proposed treatment.

I have been given an opportunity to ask questions, and all of my questions have been answered fully and satisfactorily.

I hereby release the hospital, its employees and medical staff, medical students, and the attending physician from any liability for ill effects that may result from my decision to refuse to consent to the proposed treatment.

I confirm that I have read and fully understand the above and that all the blank spaces were completed prior to my signing.

Patient/Relative or Guardian*

Relationship
(if signed by person other than patient)

______________________________________________

Interpreter (if used)

*The signature of the patient must be obtained unless the patient is a minor or is otherwise incompetent to sign.

Witness:

 

Lee Johnson. Malpractice Consult. Medical Economics 2002;9:143.