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INFORMED REFUSAL: Risks & Consequences
of Withholding Consent
by Waldene Drake, RN, MBA
Vice President, Risk Management
and
Dan Groszkruger, JD, MPH
Consulting Editor
Doctor Jones has examined Ms. Smith, performed all appropriate tests, and recommended a treatment plan. But, Ms. Smith has declined the treatment, for "personal" reasons. Does Doctor Jones have a further duty to warn Ms. Smith about the risks and consequences of her refusal? If so, must Doctor Jones try to persuade Ms. Smith to change her mind?
Consider the above questions in the context of these scenarios:
- The patient refused the rectal exam during his physical exam. The physician notes, "patient refuses rectal exam." How does the physician defend himself when the patient, now diagnosed with prostate cancer, asks, "Why didn't you tell me that a rectal exam could have found the cancer early and prolonged my life?" How will the physician respond when the same question comes up during a malpractice trial?
- The patient declines chemotherapy, the treatment of choice for her stage of breast cancer. "I don't want to lose my hair and go through all that nausea and vomiting," she states. Radiation treatments, however, are acceptable to her. What if the doctor does not recall her statement, several years later when he is on the witness stand? How will he explain his choice of sub-optimal treatment?
- The patient's health plan does not pay for colonoscopy for screening purposes. While the patient is asymptotic, he has a strong family history of colon cancer and his physician has recommended that he undergo the exam. Should the patient's refusal, "I'm not going to have the colonoscopy if I have to pay for it," be recorded? What specific facts should the physician record?
These hypothetical situations help to illustrate the challenge faced by a physician when the patient refuses recommended tests or treatment. While every physician must respect the patient's right to refuse, few physicians are adequately prepared to deal with a patient's reluctance to follow medical advice. Too often, in the face of a patient's seemingly ill-informed and unwise challenge to his professional judgment, the physician merely reports the fact of refusal, without elaboration.
In an actual case involving an otherwise healthy young woman who died from cervical cancer, the California Supreme Court concluded that failure to disclose the risks of refusal constituted a lack of informed consent. A physician treated a young woman for a variety of minor illnesses and injuries over a period of six years. Despite her regular office visits, including at least two pelvic examinations, the physician never performed a pap smear test. The young woman always declined the pap smear, explaining that she could not afford to pay the extra lab cost. There was no indication that the physician ever attempted to inform his patient of the risk involved in her refusal to undergo a pap smear test. At the trial, medical expert witnesses testified that, had regular pap smears been done, the physician probably would have discovered her tumor in time to save her life.
The above case led the California Supreme Court to conclude that the physician breached his duty of care to disclose material risks of refusal so that the patient might make an informed choice.1 This case presented a corollary to the well-known rule that disclosure of both risks and benefits is required for informed consent.2
Have the courts gone too far, requiring that physicians explain both the risks and benefits of recommended treatment, and the risks of refusing to consent? Perhaps not, since this further duty is still predicated upon disclosing all material information necessary to allow an informed choice. Just like the patient who needs to know both risks and benefits of recommended treatment, the reluctant patient needs to understand the consequences of refusal. Notably, the Supreme Court did not say that physicians should try to persuade a reluctant patient to change her mind. Given the knowledge deficit that often exists, there is a real danger of coercion if the physician perceives his duty as doing "everything possible" to get the patient's consent.
If, after discussing the risks and benefits with a patient, he or she refuses to proceed with the medical treatment or diagnostic advised, we recommend the following:
- Document the risks and benefits explained for the treatment/diagnostic,
- Document the risks associated with delay, or not undergoing the treatment/diagnostic at all,
- Document patient or family refusal and the questions regarding your medical advice. If stated, document the patient's rationale for resisting or refusing, and
- Document the patient's final decision, and your response, as well as your ultimate plan of care.
EXAMPLE:
"I have explained Linda's increased risk of developing breast cancer, since her mother died of breast cancer. I have explained to Linda that she needs to have a mammogram, now and every year, to detect any developing cancer in her breast. Linda advised me that her health plan will not pay for screening mammograms, at her age. I warned her of the risks associated with delayed detection and treatment of breast cancer. My appeal to the health plan was not successful. After our discussion of the risks, Linda chooses not to proceed with the recommended mammogram because the cost will not be covered by her health plan."
1 Truman v. Thomas, 27 Cal.3d 285 (1980)
2 Cobbs v. Grant, 8 Cal.3d 229 (1972).
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