Allegations of a lack of informed consent for anesthesiologists are routinely included in litigation where the informed consent process is poorly performed or even just poorly documented.
Undermining A Jury's Confidence
The lack of informed consent can become an important issue in a malpractice claim against an anesthesiologist, especially in a jury trial. While it is true that lack of informed consent is rarely the main issue in a lawsuit, the failure to provide a good informed consent provides the plaintiff attorney with an important tactical advantage. Plaintiff attorneys use the lack of a good informed consent process as a methodology for undermining the jury's confidence in the defendant anesthesiologist. They suggest that the anesthesiologist was careless, paternalistic, unengaged with the patient, or even focused primarily on making money. The absence of a good informed consent plays into this perception and leaves the defense at a disadvantage.
Informed Consent...The Early Rounds
During litigation, the plaintiff attorney typically gets to present first. He/she decides which witnesses will be called, the order in which they are called and the focus of the direct examination. In the typical case, much like a 10 round boxing match, the plaintiff is throwing all the early punches and the defendant doctor is merely playing defense and trying to deflect as many punches as possible in the first 5 rounds. The case turns once the defense gets to put on its case. Under this framework, the lack of informed consent becomes a useful tactic that the patient's attorney will use to turn the jurors against against the doctor in the early rounds.
The medical issues themselves may be complex and subject to debate, but jurors will relate to and often share the frustration with respect to a lack of input into their own health care decisions. Most jurors have all felt rushed through doctors visits or believed little time was afforded for questions or concerns. Not having a sound informed consent process allows the plaintiff to undermine the perception of the defendant anesthesiologist in a way the plaintiff attorney may not be able to do with regard to the actual medical care.
Informed Consent...The Verdict Is In
By the time the plaintiff is done with their half of the case, the anesthesiologist may be on the mat. Even if the anesthesiologist and defense team are able to fight their way up from the mat, the plaintiff attorney has inflicted injuries and rather than focusing on the actual medical care, the defense team is forced to rehabilitate the anesthesiologist in terms of his training, skills and compassion, etc. Rather than focusing on the medical issues in the case, the lack of informed consent becomes a distraction as the attempt is made to demonstrate to the jury that the anesthesiologist is in fact a good and caring doctor. A good informed consent removes this tactic from the plaintiff's arsenal and the defense can spend the entire case going head to head on the "real" medical issues.
Download a free copy of an anesthesia specific informed consent document that has been used successfully numerous times at trial.