c. Failure to Inform (Negligence). Later medical consent lawsuits involved
physicians who had obtained consent, but had not given the patient sufficient
information to make an informed decision. Failure to inform is a form of negligence.
FAILURE TO INFORM ABOUT RISKS OF NOT TREATING
In Truman vs. Thomas (Calif., 1980), the patient had been under the care of the
physician (a general practitioner) for several years. The physician was found
negligent for failing to inform the patient of the risks of not consenting to a
recommended Papanicolaou's test (Pap test). Had the Pap test been performed, the
patient's cervical cancer could have been discovered in time to begin treatment and
extend her life.
THE PHYSICIAN OBTAINS CONSENT
It is primarily the physician's responsibility to advise the patient and to obtain
consent. It is poor practice to leave completion of the consent form to the nurse, as is
sometimes done. The form should be completed when the physician has made his or
her explanation and is satisfied that the patient truly understands and consents. When
informed consent cannot be obtained, the hospital gets involved in advising members of
the medical staff on how to secure authorization.
NATURE OF CONSENT
a. Providing Substantial Information. Consent is a free and rational act,
which presupposes knowledge of the nature of the procedure to which consent is given.
That knowledge does not have to be exact in all of its details, but it does have to be
substantially correct. The patient's consent is not free and rational if it is based on
ignorance of the essential nature and consequences of a treatment or operation.
b. Obstacles to Providing Substantially Correct Information. Providing the
necessary information to a patient may pose unique problems to the health care
provider. Sometimes the treatment is so complex that it is difficult to give the patient a
correct understanding of the nature of treatment. In other cases, the patient might
prefer not to know certain unpleasant things, for example, the uncomfortable sensations
experienced during a barium enema. In still other instances, an explanation might feed
irrational fears, creating resistance and difficulty for health care providers in
administering the treatment. Some patients suffering from denial are unable to
comprehend, process, or remember information about their illness or its recommended
treatment. Such patients don't want to believe they have a serious illness, and can't
accept their diagnosis and/or prognosis. Some are so beset by fears and anxiety that
they listen without hearing or hear without understanding. And some patients refuse to
listen, abandoning their decision-making role entirety.