In 1987, James Gottesman, a urologist practicing in Washington, saw a patient with an elevated prostate-specific antigen test. The patient received a biopsy. No cancer was found. The same happened in 1988, but in 1990, cancer was found. The patient sued Gottesman under a state law that says failure to diagnosis cancer is negligence. A detailed, informed consent form is what “saved my bacon,” Gottesman told an audience Tuesday at the Medical Group Management Association conference in Las Vegas.
Gottesman has used procedure-specific informed consent forms for nearly all his 30-plus years of practice and is a vocal champion of standardizing consent forms. His procedure-specific consent forms for the prostate cancer patient who ended up suing him for negligence and were signed by the patient clearly stated that cancer may be present but not detected and that multiple biopsies may be needed to detect cancer.
The state of Washington disallows the admission of informed consent forms, however, the jury had the patient’s chart and the informed consent forms were part of that chart. It was those signed informed consent forms that made the difference to jury. They found Gottesman not guilty of negligence. “Informed consent is important,” Gottesman said, “even in cases of negligence.” As in his case, it can “completely negate the negligence.”
But not everyone embraces informed consent or standardizing informed consent forms, Gottesman said. He has encountered doctors who still believe it is better not to tell patients all that could happen to them if they have a procedure and there is resistance to standardization because, he said, doctors don’t like to be told what they should tell their patients.
“Patients like it – they like having some knowledge,” Gottesman said. Informing your patients does them a service and protects you.
Informing patients adequately upfront – what he calls “proactive disclosure” – is a better alternative to the “apology and disclosure” practice many are engaging in today. The “apology and disclosure” practice is effective and has reduced litigation, Gottesman said, but it’s better to hear from your patient, “It’s OK. You said this could happen. What do we do now?” rather than “I had no idea this could happen!”
Follow HFN associate editor Stephanie Bouchard on Twitter @SBouchardHFN.