In the Know

The Hospitalist. 2006 October;2006(10):

October 1, 2006 | The Hospitalist

Key Considerations for the Hospitalist

Ordinarily, the person whose name is at the top of the patient’s chart has full responsibility for informed consent, although sometimes a subspecialty consultant, such as a cardiologist asking for a particular study, might help. A hospitalist might be named as the responsible provider in an area in which he or she is active.

Ben Rich, JD, PhD, a professor of bioethics at the University of California-Davis School (UCD) of Medicine in Sacramento, Calif., has considered the critical problems or distinctions that the hospitalist, as opposed to other physicians, may have in the area of informed consent. One area that strikes him as potentially risky is that of advance directives. Dr. Rich, who teaches a course on medicine and law at UCD, says that for decades experts have urged primary care physicians (PCPs) to discuss advance directives with patients as part of routine care. Even so, he acknowledges, if a patient is in critical condition and is hospitalized, “it is entirely possible that their personal physician won’t even know about it. So here is the person who is supposed to have apprised herself of the patient’s values and priorities in circumstances like that, and they’re out of the picture. And the person who is trying to interpret advance directives, if there is one, is the hospitalist.”

It might be difficult for the hospitalist to interpret any ambiguities. If the hospitalist believes it is impossible to know what the patient understood at the time they drafted the directive about the circumstances they are now facing, he or she may be more likely to dismiss it as invalid and simply make a decision as to what is medically appropriate, says Dr. Rich.

The discontinuity of care imposed by the hospitalist systems raises several ethical concerns, wrote Steven Pantilat, MD, in JAMA.12 The primary care physician and patient have previously negotiated, through the process of medical decision-making, the patient’s goals and values regarding medical interventions. “Because hospitalist systems leave no formal inpatient role for the PCP,” wrote Dr. Pantilat, “ … patients can no longer rely on agreements reached in the office following them to the hospital. Nonetheless, the hospitalist shares the PCP’s obligations to respect the ethical principles that agreements about preferences for care or individual values often represent.”

Another important but somewhat controversial issue involves whether a consent discussion held preoperatively also encompasses the management of post-procedure complications.8 Although it is impossible to mention all possible serious complications beforehand, it is prudent to reference the patient’s goals and general treatment preferences and to ensure that a family member (if not the designated surrogate) is present during this conversation. Just the same, each new intervention or procedure requires a new conversation and, in some cases, a new signed form. “Because at the end of the day,” says Patrick O’Rourke, JD, an attorney in Denver who regularly represents physicians in medical malpractice cases, “physicians are the people who have the obligation to obtain informed consent; the hospital as an institution does not, because hospitals don’t practice medicine; physicians do.”

Particularly with patients who face serious illness and those confronting what may be a chronic condition going forward, says Dr. Rich, “there’s a school of thought [that maintains] that part of the informed consent process is obsessively focused on procedures and pays woefully inadequate attention to the reasonable goals of care. This is nowhere more obvious than in the ICU setting.”

Protect Yourself from Risk

Pat O’Rourke, an attorney with the Office of University Counsel of the University of Colorado Medical Center in Denver, Colo., frequently gets asked by physicians how to protect themselves and their patients from the risks of faulty informed consent. There are two major areas that he emphasizes could be risky.

Some healthcare professionals put together videotapes about the procedures they might undergo. They have patients watch them as part of an informed consent process, and it can be very helpful. But there are two downsides to it: The first is that there is always the possibility that you are not going to mention a particular risk or complication in your videotape. So you’d better be sure it’s comprehensive. The second thing to remember is that a videotape can’t answer questions. So even if physicians choose to use this type of tool to educate a patient, the patient must have the opportunity to ask questions and have them addressed so that their individual needs are met, not just relayed in an assembly line manner.
When I talk to doctors about informed consent, I tell them that there’s nothing I hate to see more than just a line that says “Risks, benefits, alternatives discussed” because that doesn’t tell me which risks, benefits, and alternatives were actually talked about. And the problem with that is that it may lead to a he said-she said situation, where the physician said, “I definitely talked about that,” and the patient says, “Nobody talked to me about that.”

Invariably these lawsuits come rolling down the pike a year or two after the medical care has happened and, in the intervening period of time, the physician will probably have performed hundreds, if not thousands, of procedures. If [as part of litigation] the doctor is asked, “Do you remember what you said to the patient on this day?” And the doctor says, “No, but my general habit is to talk about x, y, and z.” That won’t suffice because then he will be asked, “Where did you document that you talked about x, y, and z?”