Positive Outlook - Issue 1.0 - Jan 2013

Informed Consent Legal Length Discrepancy 
Studies have shown that a signed consent form does not guarantee that the patient is completely aware of the specific nature of the treatment, and that patients remain insufficiently informed, even when extraordinary steps are taken to provide comprehensive information and to ensure patient understanding. 

A common professional liability lawsuit facing an orthopaedic surgeon relates to a leg length discrepancy or inequality after performance of total hip arthroplasty (THR). This one potential side effect of THR has resulted in 6 malpractice cases that we have successfully managed to date.

A 2002 study attempted to determine the percentage of knowledge retained immediately following an outpatient consultation for total hip and knee joint arthroplasty. It concluded that, immediately following a consultation, patients recall only a small percentage of information and, in particular, the recalling of possible operative complications is poor. This same study demonstrated that when leg length discrepancy was one of eight potential complications discussed with the physician during consultation, only 20% of the patients recalled leg length discrepancy as a potential complication immediately following the consultation.

A separate form listing the complications of THR which clearly states that a leg length discrepancy may be a necessary surgical outcome to stabilize the soft tissues can save a surgeon significant time out of productive work to defend his conduct. This concept is applicable to all specialties that perform procedures. It is essential to list not only life threatening complications but to also list cosmetic or less than perfect outcomes that are associated with the procedure to be performed. It is worth it.

Many times a consent form does not allow sufficient space for listing risks. We suggest taking the time to put together an “educational brochure” that explains in detail and in plain language, the nature of frequently performed procedures, as well as the risks, benefits and alternatives . This gives the patient and the patient’s caregiver the opportunity to understand the expectations relating to the procedure, as well as providing a resource for the patient to refer to once the patient leaves the physician’s office. The educational brochure need not be professionally printed. Rather, it can be generated from the office computer. Physicians should document the informed consent process, including the patient’s receipt of the educational brochure, within the patient’s chart.

Documentation of these discussions with the patient is an important step in establishing that the patient’s informed consent was obtained and in helping to defend against or even eliminate claims based upon a lack of informed consent. 

Turner & Williams, “Informed consent: patients listen and read, but what information do they retain?”, Journal of the New Zealand Medical Association, Oct. 25, 2002, Vol. 115 No. 1164