IN more than 70% of claims and complaints about informed consent the main allegation was that the doctor failed to mention or properly explain the risk of complications, new research shows.

The MJA study of 481 cases of alleged failures in the informed consent process found 57% were against surgeons and 92% involved surgical procedures. About one in six cases involved cosmetic procedures and the rate of complaints against plastic surgeons was significantly higher than that against any other specialists. (1)

Five types of treatment accounted for almost half of all cases — reproductive, facial, medication, eye and breast.

“… the concept of a ‘typical’ informed consent dispute has real currency: it is an operation, often undertaken for cosmetic purposes, in which the patient alleges that a complication was not properly disclosed”, the authors wrote.

Study coauthor Professor David Studdert, of the Melbourne School of Population Health and Melbourne Law School at the University of Melbourne, said the study highlighted some areas of care that doctors might not consider critical to discuss but that did worry patients.

The study includes a list of 30 different treatment types that feature highly in informed consent cases.

“Readers might run their eye down that list and if they don’t do any of those things, then they are not particularly at risk”, Professor Studdert said.

However, if doctors performed some of those procedures and treatments, they should think about what they say to patients.

Cosmetic surgery probably attracted more complaints because it was usually not essential surgery, so tolerance of complications was low, patients often had to pay out of their own pocket, and it tended to be very visible.

The authors reviewed negligence claims against doctors insured by Avant Mutual Group and complaints lodged with the Office of the Health Services Commissioner of Victoria between 1 January 2002 and 31 December 2008, which alleged failures in the informed consent process.

Professor Guy Maddern, professor of surgery at the University of Adelaide, said it was to be expected that surgery would be the subject of most complaints because that was where consent was the most relevant.

“The problem with consent is knowing that the patient has registered the information you have tried to give them,” Professor Maddern said.

He suggested giving detailed information sheets, asking the patient to bring in a relative or friend and staged consent, which involves a second consultation or completion of a detailed electronic consent form.

Professor Studdert said surgeons often had limited time and choices had to be made about what to emphasise to the patient. “It is an invidious task, really.”

Cheryl McDonald, claims department manager with MIGA (Medical Insurance Group Australia), said ways of mitigating the risk of a complaint included good communication, a thorough consent process, not treating all patients the same, and giving patients an opportunity to ask questions.

“You are not expected to warn of absolutely every single complication but you have got to warn of material risks, which are that if a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it”, Ms McDonald said.

It was even more important with elective cosmetic surgery to ensure that the consent and the patient’s expectations of the procedure were realistic, she said.

Dr John Buntine, president of the Australian Association of Surgeons, in a letter to the MJA relating to previous research on patient complaints, said he believed that a common stimulus for complaints was a perception that the doctor was overconfident, perhaps arrogant, and had little personal interest in the patient’s welfare. (2)

“Good manners, kindness, demonstrations of personal interest and concern, and a degree of humility all discourage complaints”, he said.

– Cathy Saunders

1. MJA 2011; 195: 340-344
2. MJA 2011; 195: 325

Posted 19 September 2011

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