Attorney advises surgeons: Use informed consent to avoid malpractice

KOHALA COAST, Hawaii — Orthopedic surgeons should focus on the use of proper informed consent to help avoid medical malpractice suits, according to one of the nation’s top medical attorneys.

“The No. 1 thing that you have to deal with is informed consent,” David M. Glaser, JD, said at Orthopedics Today Hawaii 2009, held here.

Glaser noted a case where a hospital said it had unwritten informed consent, which the Centers for Medicare & Medicaid Services (CMS) would not accept. A medial ethicist opined that there is no such thing as unwritten informed consent.

“I beg to differ,” Glaser said. “The main patient who is going to sue you is the one who is surprised. The No. 1 thing that you can do [to avoid that] is to let your patients know what is going on.””

He said how you document consent is important. “The more compelling and inclusive your documentation is, the more trouble it may bring.”

Glaser warned meeting attendees that including too much information in an informed consent document can be a “double-edged sword.” For example, if you list six things in the document that can happen but a seventh one occurs, that can hurt you, he said.

Still, Glaser believes that orthopedic surgeons on the whole spend too much time worrying about malpractice.

“If you get sued for malpractice, you are not likely to pay any economic repercussions for it,” he said. “It may hurt, and I think that is why it causes so much anxiety — it is personal and not business. But in reality, there are many other things that are more likely to happen to you that will make your life more miserable.”

Chief among them: a federal audit or a sexual harassment suit. “Those are things that are more likely to ruin your life than a malpractice suit,” Glaser said.

For more information:
Glaser DM. Trends in medical liability (Malpractice coverage): Protect yourself and your patients. Presented at Orthopedics Today Hawaii 2009. Jan. 11-14, 2009. Kohala Coast, Hawaii.