At the end of the trial, the plaintiff’s lawyer cleverly requested that the judge instruct the jury on the concept of informed refusal, knowing there had been no evidence that the doctor had advised the patient or his wife of the risk of refusing the CT scan.
The jury concluded that the physician did recommend the scan but failed to advise the patient or his wife of the risks of not having it. The trial ended in a plaintiff’s verdict of several hundred thousand dollars.
What’s happening nationally?
Four other states besides California have considered legislation regarding informed refusal: Nevada, Vermont, and Michigan have passed laws recognizing its existence, and Mississippi recognized the concept even though an informed refusal bill was defeated in the legislature.
Informed refusal is embodied in court decisions in other states. I have found no state where the doctrine has been overtly rejected.
If you want to learn more about patient safety and liability, the patient safety committee of the American College of Surgeons has published a booklet and manual, available on the organization’s Web site (www.facs.org/commerce/catsplash.html), containing essential information for surgeons and other physicians.1,2
The Joint Commission on Accreditation of Healthcare Organizations offers a 50-page book, available free online: Health Care at the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury.3 It is available at www.jointcommission.org/NR/rdonlyres/167DD821-A395-48FD-87F9-6AB12BCACB0F/0/Medical_Liability.pdf.
1. Manuel BM, Nora PF, eds. Surgical Patient Safety: Essential Information for Surgeons in Today’s Environment. 05PS-0001. Chicago, Ill: American College of Surgeons; 2005.
2. Professional Liability Committee, American College of Surgeons. Nora PF, ed. Professional Liability/Risk Management: A Manual for Surgeons. 2nd ed. 04PL-0001. Chicago, Ill: American College of Surgeons; 1997.
3. Joint Commission on Accreditation of Healthcare Organizations. Health Care at the Crossroads: Strategies for Improving the Medical Liability System and Preventing Patient Injury. Oakbrook Terrace, Ill: Joint Commission on Accreditation of Healthcare Organizations; 2005.
Timing the conversation
It is not always clear when a physician should acknowledge that a patient has refused a recommended treatment. Patients are often frightened or reluctant about an operation or medical treatment. Some will want time to think about it, talk with friends or family, and, perhaps, get a second opinion.
Suppose you recommend a breast biopsy to a responsible and long-term patient. She may well want to talk to her husband or close friend about it before making a decision. You should not feel compelled to say, “Fine, but you could die of breast cancer if you don’t have this done.” The informed refusal discussion should occur when a patient makes it clear that she has rejected your recommendation.
A risk-management professional might say that the sooner you have this conversation with the patient and document it, the better. But you have to base your timing on the situation and your assessment of the patient’s reliability.
Harsh words are unnecessary
The informed refusal conversation need not take place immediately with a patient who seems reasonable and thoughtful about the process. However, obtaining informed refusal on the spot is worth the effort if you doubt the patient will return to give you a decision.
Maintaining the patient’s trust is important. Do not be so concerned about protecting yourself from a malpractice suit that you constantly make harsh comments about what could happen if patients reject medical advice. The key is for you to assess the patient’s likelihood to respond later.