2017 HSC Section 2 - Practice Management

Reprinted by permission of J Am Coll Surg. 2009; 208(4):627-634.

ETHICS

Informed Consent and the Surgeon

Ryan Childers, BS , Pamela A Lipsett, MD , FACS , Timothy M Pawlik, MD , MPH , MTS , FACS

The practice of surgery entails many things, from the mas- tery of good clinical judgment to the cultivation of ad- vanced technical and operative skills. Equally paramount to the practice of surgery is the ability to develop relation- ships with patients that instill trust and facilitate commu- nication. During the past 50 years, the nature of the patient-surgeon relationship has undergone a significant transformation. Although certain central ethical tenets of medicine have remained unchanged, the emphasis on pa- tient autonomy, transparency, and shared decision-making has increasingly come to the forefront of medical practice. For example, although the Hippocratic tenet of primum non nocere and the principle of beneficence continue to be central to the ethical practice of surgery, more paternalistic conceptions of the surgeon have largely been abandoned. Rather, over the past 50 years, patient autonomy and the right to individual self-determination have replaced the previous belief that “doctor knows best.” One of the earliest legal acknowledgments that physi- cians were too paternalistic in how they practiced and com- municated with patients was the landmark 1914 New York Court of Appeals case, Schloendorff v Society of New York Hospital . 1 In this case, a physician who believed he was acting in the best interests of the patient and removed a malignant tumor against the wishes of his patient was found guilty of battery. In the majority opinion, presiding Justice Benjamin Cardozo observed that “a surgeon who performs an operation without a patient’s consent commits an assault.” 1 This decision emphasized the patient’s basic right of self-determination in the context of the patient- surgeon relationship. Later court decisions, including the 1972 Canterbury v Spence case, 2 more formally codified and expanded on the autonomous role that patients have in their relationships with treating physicians. Specifically, in the Canterbury v Spence case, the justices ruled that physi- Disclosure Information: Nothing to disclose. Dr. Pawlik is supported by grant number 1KL2RR025006–01 from the National Center for Research Resources (NCRR), a component of the Na- tional Institutes of Health (NIH), and NIH Roadmap for Medical Research. The contents of this publication are solely the responsibility of the authors and do not necessarily represent the official view of NCRR or NIH. Received August 22, 2008; Revised December 11, 2008; Accepted December 12, 2008. From the Department of Surgery, The Johns Hopkins University School of Medicine, Baltimore, MD. Correspondence address:TimothyMPawlik, MD, MPH, MTS, Department of Surgery, Johns Hopkins Hospital, 600 North Wolfe St, Halsted 614, Bal- timore, MD 22187–6681.

cians and surgeons could no longer hide behind therapeu- tic privilege to excuse a lack of adequate disclosure to pa- tients. 2 Additional court decisions would follow, effectively ushering in a new era of how surgeons would need to re- conceptualize the patient-physician relationship. As the scope of the surgeon-patient relationship was changing, informed consent came to embody the shift to- ward a more patient-centered paradigm of care. In contrast to a past era largely characterized by a minimal exchange of information and unilateral decision-making, informed consent was held up as the legal and ethical solution to avoid previous paternalistic pitfalls. 3-5 Armed with the tool of informed consent, surgeons now were expected to have a formal mechanism both to recognize patient autonomy and to address patients as self-determining moral agents. In the routine use of informed consent, therapeutic privilege and other more paternalistic tendencies would hopefully be replaced. 3 Informed consent serves to identify and respect a pa- tient’s best interests by giving each patient the opportunity to decide autonomously what his or her best interests are in light of the planned procedure. The informed consent pro- cess is meant to recognize the inherent ethical worth of self-determination, regardless of the content or character of the decision itself. In turn, informed consent seeks to rec- ognize each patient’s value system, and their individual life goals, and how these factors inform their decision-making. It could be argued that in its truest form, informed consent is really the process; the document is only a concrete sign that the process has occurred. Despite inarguable advances, implementation of in- formed consent in the surgical setting can still represent a challenge. In daily practice, informed consent can fre- quently be seen as nothing more than a patient’s signature, rather than an involved, deliberative process between pa- tient and surgeon. In addition, surgeons-in-training are rarely given formal training in informed consent, so young surgeons may lack a proper understanding of how to en- gage patients in this important process. Surgical residents deserve the opportunity to learn the art of obtaining in- formed consent in the clinical setting and should be en- couraged by faculty not to dismiss or modify this process in the interest of time or for any other reason. In fact, surgeons may be prone to dispense with lengthy discussions, and some studies even suggest that physicians frequently con- vey the “wrong” information to the patient. 5,6 These studies highlight the fact that physicians often communicate types

© 2009 by the American College of Surgeons

ISSN 1072-7515/09/$36.00

Published by Elsevier Inc.

doi:10.1016/j.jamcollsurg.2008.12.012

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