About a year before my mother-in-law passed away from cancer, her oncologist said nothing more could be done to treat her illness. He did not volunteer how much longer she might live, nor did he indicate how the remaining course of her disease would likely unfold. Here’s the surprising part: This doctor’s omissions were perfectly legal in the state in which he practiced. That’s because there is no law in that state that required him to disclose such information unless the patient specifically asked for it or he was proposing a treatment that required her to either accept or reject it.
This is just one of the thorny issues related to “informed consent.” Simply put, informed consent is when a doctor must tell you what he/she wants to do about your medical problem…explain the treatment or procedure in a detailed, yet understandable way (including what might go wrong)…and get your permission to proceed. To avoid confusion regarding your care, always ask your doctors these questions before you make a medical decision requiring your consent…
QUESTION #1: What’s my prognosis?
State laws and courts have ruled that doctors must give you a prognosis if asked for one or if you have to make a decision about a treatment that might have a direct effect on your health. This includes surgery and treatments such as radiation and the use of prescribed drugs. Action alert: Because disclosure rules are governed by state laws, which vary from state to state, always ask for a prognosis if you have to make a major treatment decision. Do this even if you plan on forgoing all treatment. All state laws give you the right to ask and get an answer.
QUESTION #2: What experience do you have performing this procedure?
I have never seen an informed consent form that describes the doctor’s experience performing the proposed procedure. Again, a doctor is not required to disclose experience unless you ask for it. However, studies show that choosing a practitioner experienced in providing the treatment you need greatly improves your chances of a successful outcome. A key question is how many times the doctor has performed the procedure in the past year. Action alert: Consent forms are designed to convince you to say “yes” to the proposed treatment, so make sure you ask questions about undisclosed treatment issues. Questions to include: “How long is the recovery time?” and “How might the procedure affect other conditions I have?”
QUESTION #3: Could I get this in writing?
Surprisingly, doctors are generally not required to get your consent for medical treatment in writing. It’s legal for doctors to give you treatment information verbally, and by saying “yes,” you have given consent. But you do have the right to ask for the information (including the purpose of the treatment, risks and chances for success) in writing. Action alert: To avoid any confusion later on, ask for all your options in writing. Even if you have given written consent, you may be asked to approve a change of plan during treatment. This also can be done in writing (unless it’s an emergency) to spell out exactly what will happen. When it comes to your medical care, you don’t want to be surprised!