Informed Consent, Record Keeping, and Documentation

Neal R. Reisman

Informed consent, record keeping, and other forms of documentation are critical parts in avoiding unfavorable results. A major source of patient dissatisfaction is failed expectations. The informed consent interaction is a great time to explore the patient’s expectations and goals and assess the ability to deliver such goals. Informed consent is a process and can be used to help define expectations and document necessary information. The informed consent process can be used not only as a legal protection, but also as a means of adding value and information in assisting the patient with procedure choices and options.

Avoiding Litigation

Failed expectations are a major reason for litigation. It behooves the practice to spend an appropriate amount of time determining realistic expectations of the patient and the surgeon’s ability to achieve those goals. Patients often present seeking a certain procedure that they have read or heard about, but the surgeon should redirect the discussion toward what the patient is concerned about and then present options to address those concerns. This may or may not involve the procedure they initially requested. I have always negated the defense surgeons sometimes use in litigation, “This is what the patient wanted, and he understood the risks.” This is valid if the choice is an appropriate one, but surgeons have a duty to protect their patients, often from themselves. If patient desires a certain procedure, even after discussion regarding its inappropriateness, the surgeon still has a duty to provide reasonable and safe options for the patient. In this time of increased competition, refusing a patient and risking the loss of that income can be difficult. The honest and ethical approach is to ensure that both patient selection and procedure choice are appropriate and obtainable. This does not imply a warranty that the goal will be reached; it simply affirms the goal is attain able given a lack of healing issues and patient compliance. An appropriate adage is that “you earn your income from patients you treat, but you earn your reputation often from those you don’t.”

Informed Consent

Learning styles have a large impact on the informed consent process. The three main learning styles are auditory, visual, and kinesthetic. Physicians were previously warned that 35% of information provided is actually retained by the patient.1 This statistic was based on information that was spoken to the patient and therefore represents the 35% of patients who learn from listening. An auditory learner listens attentively to every detail expressed, often painting in the mind a picture of what is described. An auditory learner should be told reasonable aspects of options, choices, procedures, medications, postoperative care, and other details. A visual learner requires a visual aid, which may be a photograph, video, sketch, or other demonstrative. Thus using such aids would benefit the informed consent process with the caveat that these models do not guarantee the specific patient’s result. A kinesthetic learner retains information best when descriptions are personalized. Examples are helpful, such as, “Remember when you had a sunburn? A facial peel or laser treatment may be close to that.” Surgeons must be creative in arriving at personal examples the patient can relate to. These learning styles, when combined, can result in a much higher retention, understanding, and improved choice of ultimate treatment as well as patient acceptance. All three of these learning styles should be incorporated in the informed consent process to provide an appropriate level of information that can be understood by the majority of patients to help achieve the goal.2,3 Many patients will not reach a full understanding after one visit. Often multiple visits are necessary to provide full under standing as well as the time to answer questions and interact.

Express Versus Implied Warranty

The surgeon must be careful when using demonstrative visual examples to not imply that this will represent the patient’s results. It is common for patients seeking breast augmentation to bring photographs of their desired outcome. Such photographs should not be included in the medical record, because doing so may help create an express warranty as to the patient’s results. There are two types of warranty that may be created:

1. The express warranty relies on a demonstrative as part of a record demonstrating what the surgeon will achieve. These photographs are helpful in assessing how realistic the patient’s goals are but not to ever imply they will be reached. Surgeons should be careful of other forms of visual aids for the same reason.

2. An implied warranty can be created when a patient discloses necessary criteria such as time of recovery, such as a requirement for a future meeting or event, and specifically stated goals that must be reached. An example might be a patient stating she must achieve a size 4 and recover completely to attend a business cruise 7 days postoperatively. Upon hearing this, the surgeon should document the negation of the requirement that the patient will be a size 4 and be able to attend the business meeting. The surgeon and patient should discuss choosing a different date for departure, as well as the possibility that the size requirement may not be attained.

Failing to negate and discuss patient demands may lead to an implied warranty that the demands will be met. The informed consent process should include a dialogue about patient goals, recovery, realistic results, complications, and inherent risks. This process should be repeated when any treatment is suggested or provided.

The Team Approach

A common question arises when treatment for facial rhytids involves a toxin. Each toxin-based treatment should have its own consent, even if the treatments will continue at certain monthly intervals. The consent process should be performed mainly by the treating physician if he or she is providing the service. A team approach is acceptable but cannot replace the ultimate responsibility of the physician in delivering the informed consent message. The office team should maintain consistency by including the same information and learning-style methods to prevent confusion or missing necessary patient goals. Patients typically will challenge one member of the team against another if different information is presented. Establishing an understanding among practice team members to share comments, concerns, and impressions of prospective patients with each other is beneficial. Patients often demonstrate a certain negative attitude in the reception area only to be nice and demure in the examination room. This team approach can reveal the true patient.

Fig. 5.1 Patients with a lower level of concern versus deformity, represented by the green area, are typically very acceptable patients. Conversely, patients who fall in the red area of this graph, because of a higher level of concern that is warranted by the degree of deformity, may pose significant problems and possibly should not be accepted for treatment. (Adapted from Gorney M, Martello J. Patient selection criteria. Clin Plast Surg 1999;26[1]:37–40.)