and Medicolegal Issues
James C. Rucinski
“Doctor, my doctor, what do you say…?”
(Philip Roth)
The wind whistles through the cracks in your call room window when the emergency room (ER) calls and suddenly you find yourself in the maelstrom of that environment, speaking to a small group of extremely anxious strangers – having to explain that an immediate operation will be required to save their beloved one. The operating room is ready.
Obtaining informed consent is a practical combination of salesmanship, ethical problem solving and psychological nurturing. It involves the rapid market- ing of one’s own skills and plan for treatment. It requires the recruitment of the patient and the family as allies in the decision-making process. Rather than a legal requirement, however, informed consent requires an ethical commitment to the patient, your peers and to yourself.
Salesmanship
Begin by explaining your proposed treatment using the same words and lan- guage that you might use in speaking to one of your non-medical relatives.Describe the expected benefits of operation and what the consequences of alternative treat- ment approaches might be.Offer several scenarios; take a case of obstructing carcinoma of the sigmoid colon, for example. At one end of the spectrum is non- operative management, which almost certainly will result in a slow and difficult death. At the other end of the spectrum is rapid recovery from operation with long term cure of the disease. In between lie the potential difficulties of peri-operative complication or death, recovery with disability or recurrent disease. It is crucial that you believe in the plan of treatment that you propose. If this is not the case, and the plan is not acceptable to you but dictated to you from above, then let the responsible surgeon conduct his own pre-operative “negotiations” with the patient and/or his family.
“Sell” yourself to the patient and family as a scientific expert who recognizes the needs of another person, and is participating with them in solving a difficult
problem.Include a description,with approximate probabilities,of the most common
“problems” (complications) for the proposed procedure in your particular patient.
You will need to make an estimate based on general and specific information. For example, the risk of mortality for elective colon resection may be negligible but in an elderly patient with acute colonic obstruction and hypoalbuminemia the odds of dying may be one in four (> Chap. 6). Discuss general potential postoperative complications such as infection,hemorrhage (and risk of transfusion),poor healing and death. Then mention the unique complications specific to the procedure you are proposing to undertake, such as common bile duct injury in laparoscopic cholecystectomy.
It is crucial that before any major emergency abdominal operation you empha- size that a re-operation may be necessary based on your operative finding or if a problem subsequently develops.This would drastically facilitate the “confrontation”
with the family when a re-operation is indeed indicated (> Chap.46); they would un- derstand that the re-operation represents a “continued management effort” rather than a “complication”. Minor complications, such as phlebitis arising from peri- operative intravenous therapy, may contribute to information overload and probably should be omitted. Try to conduct the above “script” in a relatively quiet setting – away from the usual chaos of the ER, SICU or the OR. Use simple language and repeat yourself ad libitum; stressed members of family may have difficulty in grasping what you say. Offer the opportunity to ask questions and assess whether there is understanding of your discussion. The more they understand initially, the fewer “problems” you’ll have if complications subsequently develop. Be “human”, friendly, empathetic but professional.A good trick is to remind yourself from time to time that the family you are talking to could be yours.
Illustrate the Problem
When discussing the prospects of an operation with a patient or a family we find that illustrating the problem and the planned procedure on a blank piece of paper greatly enhances the communication. Draw, schematically, the obstructed colon: “here is the colon, this is the obstructing lesion and here is the segment we want to remove; we hope to be able to join this piece of bowel to that one, a colostomy may, however, be needed; this is the place it will be brought out.” Below the drawing write the diagnosis and the name of the operation plan. At the end of the consultation you’ll be surprised to see how carefully members of the family re- study the piece of paper you left with them, explaining to each other the diagnosis and planned operation.
The Family
When it comes to operation, you advise and the patient, and his family decides
The patient’s family is your greatest ally in promoting your plan of action.
By involving them at an early point in the decision-making process you may be able to make them partners in the relationship that you share with the patient. By avoid- ing the family you may alienate potential allies or worsen an already “difficult”
group. The difficult family is common. Long submerged conflicts and feelings of guilt tend to surface when a member of the group becomes ill. Recruit them as allies by offering them a chance to participate, by “reading” the nuances of their relation- ships and by confidently and continuously selling yourself as a knowledgeable and compassionate advisor. Use your first meeting with the family to make a good impression and gain their trust so that you will continue to be trusted when a com- plication arises or when further therapy becomes necessary.
Ethical Problem Solving
In order to sell a particular product or idea one must believe in it. In other words, based on your knowledge and experience, the operation you offer should appear ethical to you.It is ethical if it is expected to save or prolong the patient’s life or palliate his symptoms, and can achieve this goal with a reasonable risk–benefit ratio.At the same time you must be also convinced that there are no non-operative treatment modalities that are safer or as effective as your proposed operation. The burden of proof is on you!
Medicolegal Considerations
“Surgery is the most dangerous activity of legal society.” (P.-O. Nystrom)
The medicolegal dangers associated with emergency abdominal surgery greatly depend on where you practice. In some countries surgeons can get away with almost anything, in other countries emergency surgery is a legal minefield.
There are a few simple but well-proven tactics to prevent lawsuits against you:
Have the patient and family “on your side” (as mentioned above) by being empathetic, caring, honest, open, informative, and at the same time professional.
Young surgeons tend to be over-optimistic,trying to cheer-up the family.A common scenario finds the surgeon emerging from the operating room, assuming a “tired hero” pose and announcing: “It was smooth and easy, I removed the cancer from
the colon, relieving the obstruction. I was able to join the ends of the bowel together – avoiding a colostomy.Yes,your father is stable,he took the operation very well,let’s hope he’ll be home next week for Easter… (or Passover or Ramadan).” Such a script is somewhat misguided in that it may raise high hopes and expectations, with subsequent anger and resentment if complications should develop.The better script might be: “The operation was difficult, but we managed to achieve our goals. The cancer is out and we avoided a colostomy. Considering your father’s age and other illnesses he took it well. Let us hope for the best but you must understand that the road to recovery is long and,as I mentioned before the operation,there are still many potential problems ahead.”
Detailed informed consent (> Fig. 8.1).
Documentation. This is crucial, as “what has not been documented in writing did not actually take place”.Your notes can be brief but must encompass the essentials. Prior to an emergency laparotomy for colonic obstruction we would write: “78 YO male patient with hypertension, diabetes and COPD. Three days of abdominal pain plus distension. Abdominal X-ray – suggesting a distal large bowel obstruction – confirmed on gastrografin study.APACHE II score on admission 17 – making him a high risk. Therapeutic options, risks and potential complications explained to the patient and family who accept the need for an emergency laparo- tomy. They understand that a colostomy may be needed and that further operations may be necessary.”A few years later – in court – this short note will prove invaluable to you!
Fig. 8.1. “Is he going to sign?”
Avoid selling Autopsies under Anesthesia (AUAs)
We compared you above to an astute salesman,interacting with the patient and his family. In this capacity, you, a respected clinician, can easily sell anything to the trusting clients. Be honest with yourself and consider as objectively as possible the risk–benefit ratio of the procedure you are trying to “sell”. It may be easy to convince a worried family that a (futile) operation is indeed necessary and then at the inevitable M & M (morbidity and mortality) meeting (> Chap. 52) explain that the family forced the AUA on you. Easy and ethical don’t always coexist!
“One should advise surgery only if there is a reasonable chance of success. To operate without having a chance means to prostitute the beautiful art and science of surgery.” (Theodor Billroth, 1829–1894)
Concluding Remarks
Not only is what you say important but also how it is said. Introduce yourself and all members of your team who are present. Shake hands with all members of the family. Conduct the “session” in a sitting position – you sitting at eye level with the patient and his family. Maintain constant eye contact with each of them – do not ignore the ugly daughter hiding in the corner of the room – for she may be the one who becomes your enemy. Be “nice” but not “too nice” – this is not the time to smile or joke around. Just play the serious surgeon committed to the well-being of the patient. This surgeon is you, so play yourself!
Nothing is truer than the cliché that should be constantly replayed in your mind – would you recommend the same treatment to your father, mother, wife or son? Studies show that surgeons are much less likely to recommend operations on themselves or their loved ones.Do unto others as you would have them do unto you – the golden rule.
“The patient’s family will never forgive a guarantee of cure that failed and the patient will not let the physician forget a pronouncement of incurability if he is so fortunate as to survive.” (George T. Pack, 1898–1969)
