45 year old Simone visits a 50 year old plastic surgeon in his private rooms. She is interested in having a naevus removed from the centre of her back. Although it is clearly benign, she has been told by her new partner that it is unsightly. The surgeon is running late for his public list and moves briskly through the consultation before agreeing to perform the simple procedure in a week’s time. Simone leaves his consulting room feeling happy that the blemish will soon be gone. Post-operatively, however, she develops a wound infection that prevents her from swimming with her family on a much-anticipated tropical holiday.

Simone lodges a claim against the surgeon for the cost of the holiday, claiming that he failed to warn her of this possible complication.

Despite the everyday nature of her presentation, Simone and her surgeon have been caught up in a ‘perfect storm’ of medicolegal misadventure. Multiple factors have aligned to create an extremely unpleasant experience for both of them. The surgeon probably performed the excision with all due skill and to a more than satisfactory professional standard; the problem really began during the consent process and was compounded by Simone’s disappointment at the consequences of her unexpected outcome.

A landmark paper in The Medical Journal of Australia last month (Gogos AJ, Clark RB, Bismark MM, Gruen RL, Studdert DM. When informed consent goes poorly: a descriptive study of medical negligence claims and patient complaints. Med J Aust, 2011; 195 (6): 340-344) revealed that Simone personifies the sort of patient more likely to be involved in a complaint or claim against a surgeon for failing to warn of possible complications of operative procedures: a middle-aged woman consulting a similarly-aged male surgeon in his private rooms about a largely cosmetic procedure.

Of course, the situation is much more complex than any stereotype can represent, but ‘failure to warn’ is a key issue leading to complaint or litigation and surgeon’s should be alert to the risk. 481 cases alleging failure of the informed consent process were culled by the researchers from the files of Australia’s largest medical insurer (Avant) and Victoria’s Health Services Commissioner (HSC) in the seven years until December 2008. 92% of these cases involved a surgical procedure and 71% had the doctor’s supposed failure to mention or properly explain treatment risks as their primary allegation. These cases of dissatisfaction with the consent process were commonly accompanied by claims against the insured doctor (65%) or complaints to the HSC (54%) for other quality of care issues.

The researchers found that 69% of cases involved female patients and that – collectively – plastic surgeons, general surgeons, orthopaedic surgeons and ophthalmologists accounted for 81% of all cases that involved surgeons, which in turn made up 57% of the 481 cases identified. Obstetrician-gynaecologists were considered separately (14%) and general practitoners (with the largest number of practising doctors) were involved in 11% of cases. Adding it all together, that only leaves 18% of cases for the other medical specialists such as physicians, psychiatrists, anaesthetists and so on to be involved in.

There are some important lessons that emerge from this review of informed consent failure cases. One is that patients expect their doctor to display the same level of thoroughness and skill in the informed consent process as in the actual operative procedure. If patients are well-informed about the procedure, its possible risks and expected benefits, then they should turn up on the day with reasonable expectations about what is going to happen during and after the actual procedure. A policy of ‘no surprises’ is an excellent one to pursue, even though it is extremely difficult to anticipate all of the information needs that an individual patient might have. Asking them what they need to know in order to go ahead with the procedure is a good place to start, while true mastery of a procedural craft must include knowing what issues are likely to be in patients’ minds and anticipating their questions where appropriate.

Another important message from the paper is that these cases of ‘failure-to-warn’ have a propensity to flock with other issues of dissatisfaction, possibly by influencing the patient’s perception of the rest of the surgeon’s performance. The skillset required to explain risks in the consulting room might seem far removed from prowess in the operating theatre, but to the patient they are all part of the same experience and dissatisfaction with one can bleed into the other.

It is an inescapable fact that only one person can decide whether a doctor’s informed consent performance was satisfactory: the patient. Of course, if a case moves to investigation or litigation, others will be called upon to pass judgment based on the evidence uncovered. But every time an operative procedure is carried out, the patient involved will include the doctor’s information-sharing ability in their assessment of how satisfied they are with the whole surgical experience. The best way to make sure that the patient has no grounds for complaint is to tell them what they need to know and to ensure that their individual knowledge needs have been met. While adverse events are an unavoidable part of surgical practice, knowing that they might occur lessens the surprise and the disappointment.

Author: Professor Stephen Trumble Chair, Editorial Board Specialist Management Services This article was first published as an insert in the October 2011 edition of Surgical News.