Informed Consent

Posted on Categories Health Care, Public, Tort Law

White hospital bedsSeveral years ago, the Wisconsin veterinary state convention focused on the legal standard of informed consent in the profession. Lawyers explained that this meant that veterinarians needed to provide all options to owners and that owners make the decision as to what options to pursue. Although this seemed simple enough, and certainly some veterinarians already practiced some degree of informed consent, some veterinarians were understandably concerned about discussing a “no treatment” option and some veterinarians practice in situations where discussions with owners may be difficult (e.g., production medicine) or the time involved would defeat the purpose of their services (e.g., high-volume spay/neuter clinics). But the take-home message was that veterinarians are not the responsible parties for making the decisions for clients and that veterinarians need to provide all of the options, and all of the information that clients need to make decisions. Informed consent protects both parties to the transaction.

Informed consent provides transparency. In the veterinary profession, owners are held directly responsible for the decisions and charges incurred. When an owner is informed about diagnostic or treatment options, this includes the cost involved with the options. Informed consent means discussing what the diagnostics or treatments entail, the prognosis or outcome expected, and the costs involved. In fact, most veterinarians provide written estimates for procedures or hospitalization and may require a deposit. Although this may seem insensitive in some way—to require a deposit to provide care—the estimate can be the reality check an owner may need and, again, the owner client is the responsible party.

Informed consent is also the standard in the human medical profession, but the human medical profession does not provide estimates and doesn’t seem to even know, or admit to knowing, what price tag attaches to options. Much is said about the failures of human medicine. Some of this can be attributed to allowing the profession to not be transparent—to not providing information.

This point was hammered home to me when I had some minor surgical procedures performed shortly before law school. On my way to pursuing law school, I left full-time employment for a more flexible schedule. This also meant that I lost any benefits; I am responsible for my medical bills and insurance. I have a plan with a high deductible, so I want to know the price tag of medical options. My doctor and the surgeon did not know the cost of the procedures. I called the numbers I was given to obtain this information. After two hours, and a round-robin of phone calls, I realized that I wasn’t going to get the information I wanted. Everyone said the price would be dependent on someone else or some other department. Once I determined that my deductible would be spent, I stopped my search. The price would be determined by the insurance company and the parties submitting the bills. I still do not know the cost of the procedures.

Although insurance is a blessing and should be available to all, why should this affect informed consent? The medical profession not only misses the boat on informed consent by not proactively providing the information that a reasonable patient would want, it does not provide some information even when specifically requested. Ignorance and fear on the part of the patient may prevent any confrontations that might change this dynamic; insurance will handle it.

In preparation for my procedures I had to have a general physical. A new doctor had replaced my primary, so I had to fill out a new patient form with the clinic. The last item on the form was a statement that said I agreed to follow the recommendations of the doctor. Since I had not yet met the new doctor, I was certainly not informed, and signing an agreement before being informed is certainly not informed consent, nor even consent. I thought how wonderful this must be to be able to commit your clients to anything you recommend before you are even introduced. I signed the form because I wanted the physical, not because I intended to blindly follow recommendations. I wasn’t ignorant, I just played the game.

My goal, as a veterinarian, to satisfy informed consent is to provide the information to allow a client to make decisions, and I would argue that the human medical profession does not meet this standard. Communication should be easier when the client and patient are the same, so why is less information provided? Diagnostics may be performed based on an algorithm—not based on a discussion with, or the choice of, the patient. If you have insurance, the cost of medical care will be decided by your insurer and the medical provider after the fact. This disconnect can justify the medical provider’s professed ignorance of a financial accounting. Informed consent used to be judged by what information the “reasonable” doctor thinks a patient should be told. The standard now is supposed to be what information a “reasonable” patient wants to know. The reality may be that it is determined by what the insurance provider wants a patient to know.

Insurance should not affect informed consent. It may affect a patient’s decision, but it should not affect the information provided. Allowing medical providers to withhold information, such as the costs of treatment options, is a slippery slope. Who is the responsible party for making medical decisions for you? Unfortunately, we play the game every time we agree to a doctor’s plan without explanation, or leave a doctor’s office without a bill, or agree to a procedure without an estimate. Is that reasonable?

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