Informed consent involves shared decision making between a physician and his/her patient. This is the preferred treatment approach because the patients actively participate in the medical procedure with the doctors. Patients need to have enough information to be able to appropriately participate by making the right decision based on values and preferences. The caregivers also need to ensure that the patients have the right information that will lead to proper decision-making and good treatment outcomes (Bielen, Grajzl, & Marneffe, 2019). Therefore, both the patient and physician have rights and responsibilities in informed consent situations.
Patients have the right to have information involving their treatment and participate in the process. The treatment method chosen should be a shared decision between the two parties. However, the problem is that most patients have little information about medical procedures. To be able to consent to treatment, they must be taken through the relevant information, including what the doctor is treating, the proposed treatment method, and the nature of the treatment, possible risks involved, the expected treatment outcome, and possible alternatives (Birkeland, 2017). After understanding the above, the patient will be in the right frame to consent and has the responsibility of accepting or rejecting the medical procedure.
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Physicians also have the right and responsibility during informed consent cases. It is a basic practice and ethical requirement to involve the patients in the decision-making process. A physician should no continue with a treatment procedure that the patient does not approve of. This means that the caregiver has the responsibility of giving all the relevant information. There is no clear definition of adequate information or too much information. In the process of disclosing the relevant information, the physician must also protect the patient by giving unnecessary information (Birkeland, 2017). For example, in a situation where disclosing given information will make the patient reject a necessary treatment due to fair or illogical decisions, it would be better if the physician does not give the detail.
In the provided case scenario, the patient had an early sign of prediabetes, and the doctor did well to diagnose it in time. The physician also conducted an effective initial treatment to alleviate the symptoms and gave the required discharge information. He went further to include the patient in the decision-making by having him choose a preferred treatment (Murray, 2012). However, there was failure and instances of neglect by both the physician and the patient. The physician would have disclosed all the treatment options involved and possible risks of each choice made. Even though he did well in explaining that lifestyle change was sufficient in managing the condition, he failed to disclose the risks of not having the modification. The patient is also at fault for completely ignoring the doctor’s advice. Having no knowledge of the condition and treatment options, the patient should have at least consulted a physician before forgetting about the instructions.
The arguments the patient in this scenario could use to justify bringing a negligence lawsuit against the first ER physician ,
To justify a negligence lawsuit, the patient could argue that the physician failed to provide all the relevant details of the proposed care program. At first, the doctor prescribed nutritional counseling as a necessary intervention in preventing the progression of the condition of diabetes. There was no further information to support this decision or explanation of the risks of not having the counseling. When the patient rejected this option, the doctor advised the patient to consider lifestyle change (Bal & Brenner, 2013). The patient could argue that this information was not enough to make a good decision as the first physician failed to disclose what would happen should he not have a lifestyle change.
According to the patient, he did not have sufficient information about his condition, possible outcomes, available treatment options, the risks involved, and possible complications. He has no medical knowledge and needed guidance from the physician who has a responsibility to do so. The patient could also argue that the first physician neglected his duty by not having a follow-up (Bielen et al., 2019). After treatment, the doctor should have scheduled some sessions to know whether the patient is recovering well, or there is a need to change the treatment plan.
The steps the patient in this case would follow in order to file a negligence lawsuit involving informed consent against the first ER physician
Below are the steps the patient in the case would follow to file a lawsuit of negligence against the first physician:
Ensure that the Statute of Limitations Deadline has not passed
Patients need to act as immediate as possible upon realizing medical malpractice. It would be a mistake to wait for too long before filing a case in court. The time limits are different depending on the state where the incidence occurred. In some places, the patient might have only one year from the time of the malpractice. The patient in this scenario must first ensure that he is within the statutory time limit.
Discuss with a Medical Malpractice Attorney
Medical malpractice cases are complicated, and a patient would not manage to handle one on his own. They involved medical, legal, and procedural elements, and all are considered during hearings. The attorney will begin by offering initial consultations before helping the patient on how to proceed with the next steps procedurally.
Obtain Medical Records
Documentation is important in building and proving a case. The patient will need to find the documents he was given upon discharge and request the rest from the healthcare facility. The records will help in analyzing the treatment procedures done and what could have been done better.
Determine the Damages
By knowing the value of the damages, the patient will understand the case and its magnitude. In some cases, the hospital or physician might offer to settle the case. The damages include the harm done and treatment costs incurred due to the malpractice. In this case, the damage would include the cost of the prescribed medication, the permanent nerve damage, and job losses.
Comply with Procedural Rules
There are state by state procedures one needs to follow before filing a medical malpractice lawsuit. The patient will have to know and follow the steps.
Draft and File the Complaint
The final step is to make a case document with the patient’s name, name of parties involved, a description of what happened, resultant damages, and the expected compensation.
How the physician could defend himself against a negligence lawsuit
It can be very stressful for a doctor to learn that he/she has been sued for negligence. However, the doctor needs to begin defense straight away to increase the chances of the case being dropped. In this case study, the first step for the physician is to contact his medical malpractice insurance company to have a lawyer handle part of the case. During this time, the physician will need to give the full account of what happened, treatment involved, and all other possible interactions. The doctor may also face the patient’s attorney, a court reporter, or a judge. In all these circumstances, the physician needs to explain the instructions he gave and why the rest of the information may not have been necessary (Bal & Brenner, 2013). The doctor will need to argue that he prescribed the best intervention option and disclosed the necessary information at the moment. Failure of the patient to adhere to the instructions should not be held against the physician.
Legal Case Examples
The first legal case example happened in Canterbury and involved a young man and a physician. The patient had back pain and was advised by the physician to undergo a laminectomy. The physician was fully aware that about one percent of laminectomy cases lead to paralysis. However, he did not inform the patient about this risk for the fear that the patient might reject the much needed medical intervention. After the treatment, the patient had an accident while recovering. He fell from his hospital bed and got paralyzed. It was not clear whether the paralysis was a result of the treatment or accident (Bal & Brenner, 2013). The patient, however, went ahead to sue the physician for failing to disclose full information. The court determined that physicians are only required to disclose information to patients if it is reasonable enough to do so.
In another case, a 56-year-old woman developed a deep wound infection due to a hip replacement procedure. The physician had two intervention options. One was to conduct hip resection, but it would lead to bone loss, serious morbidity, and potentially permanent disability. The second option that the doctor went for is chronic infection suppression after an intravenous antibiotic treatment. This option presented the risk associated with the antibiotic regimen, which, in this case, was a severe renal failure. A negligence lawsuit followed, and the doctor argued that he was presented with a judgment dilemma, and he had to choose one with fewer risks (Murray, 2012).
In the Canterbury case, the physician had to decide between informing the patient about the treatment risks and increase the chances of the patient rejecting the treatment or continue with the procedure. It was an instance of judgment, and the doctor chose the option he believed to be the best. The surgeon in the second case also had to decide on the less risky medical procedure. In the above two cases, the physicians had judgment decisions, and they chose options that appeared less risky. They also decided on the amount of information to disclose to the patients. By speaking the risks, the patients could have failed to make the best decisions.
References
Bal, B. S., & Brenner, L. H. (2013). The judgment defense in medical malpractice. Clinical Orthopedics and Related Research , 471 (11), 3405-3408.
Bielen, S., Grajzl, P., & Marneffe, W. (2019). The resolution process and the timing of settlement of medical malpractice claims. Health Economics, Policy and Law , 1-21.
Birkeland, S. F. (2017). Informed Consent Obtainment, Malpractice Litigation, and the Potential Role of Shared Decision-making Approaches. European Journal of Health Law , 24 (3), 264-284.
Murray, B. (2012). Informed consent: what must a physician disclose to a patient? AMA Journal of Ethics , 14 (7), 563-566.
