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Of interest to all physicians
The following cases illustrate an emerging trend in medico-legal jurisprudence regarding a concept that might be termed "informed discharge". The courts indicated the patients in these cases should have been told how to recognize and react appropriately to those symptoms and signs that would alert them to seek additional medical attention.
A 53-year-old woman underwent an uneventful blepharoplasty. She experienced unilateral pain in her left eye while still in the recovery room. Fifteen minutes later she was discharged home, with written instructions on how to take her pain medication and on the timing of her follow-up appointment.
That night she continued to have severe pain in her left eye for which she took narcotic analgesics as per the written instructions she had received. The next morning her left eye was swollen and red. Two days later her operating physician diagnosed conjunctivitis. One week later an ophthalmologist diagnosed a retrobulbar hematoma, which had caused permanent blindness in the left eye.
In the subsequent legal action, the patient alleged she had not been told of the significance of unilateral eye pain nor was she instructed on what to do should she experience pain.
In the court decision, the judge noted the doctor had a duty to instruct the patient that monocular pain could herald a serious complication. The judge concluded if the patient had been adequately warned of the danger, the damage to her left eye would have been avoided.
The patient was awarded compensation, paid by the CMPA on behalf of the member physician.
A 62-year-old man underwent an uneventful arthroscopy and meniscectomy of his left knee. On discharge from the day surgery the patient received written instructions to attend the hospital emergency department if he had any trouble with his leg. The orthopedic surgeon also verbally instructed the patient to call his clinic office if he had any problems.
Three days later, the patient called the clinic and notified the orthopedic surgeon's receptionist of swelling of his knee and some shortness of breath. The receptionist reassured the patient and suggested ice with elevation of the leg. The next day the patient died from a massive pulmonary embolus.
In the subsequent legal action, the patient's wife alleged the orthopedic surgeon's receptionist provided inadequate recommendations, and the reassurance received had discouraged the patient from seeking additional medical care. Although the trial judge dismissed the action against the orthopedic surgeon, the decision was reversed on appeal. The Court of Appeal believed the surgeon had a duty to inform the patient about the risk of pulmonary embolism. In the judgment, it was stated an uninformed patient would not be able to establish a link between a minor procedure on his knee and his breathing difficulties.
In this case, the Court of Appeal stated post-operative information given to patients is part of the physician's duty to follow up. Furthermore, the Court of Appeal noted this information should include not only instructions regarding appropriate care, necessary medication, frequency and nature of follow-up visits but also instruction on the predictable complications and any symptoms or signs announcing danger. The court also emphasized this information should be provided not only to the patient but also to the office or clinic staff who are responsible for triaging or responding to calls from concerned patients.
The plaintiff was awarded compensation paid by CMPA on behalf of the member physician.
In medical jurisprudence, each legal case is decided on its own facts. The above cases, in addition to others from across Canada, form a body of precedent to give guidance, but not necessarily bind the courts in future cases with different facts. The concept of the physicians' duty of informed discharge continues to evolve as more courts address the issue.
These cases suggest the courts have an increasing expectation that physicians educate patients to recognize the symptoms and signs that should alert them to seek further medical attention. The information should be tailored to each patient and each clinical situation. It is a fine balance between frightening patients and giving a false sense of security.
At the same time, Canadian courts have traditionally recognized patients have certain duties and responsibilities for their own health. This includes a duty to give their health information to the health care professionals assisting in their care, to follow instructions and generally to act with their own best interests in mind. This patient duty would also include seeking medical attention when required or when sensible to do so. The courts may consider patients to have contributed to the negligence if they failed to act as might generally be expected of a reasonable patient, and if this failure contributed to the harm or injury they experienced the courts may reduce any compensation or damages awarded accordingly. Of course, the action against the physician would be dismissed if the injury was due entirely to the patient's own negligence.
In an informed consent process, patients learn of what can potentially go wrong. In the informed discharge process, patients learn about:
Physicians may be uncertain of the diagnosis for some patients on the initial and even later visits. These patients should be made aware of this uncertainty - what is known and not known - so that any continuation, escalation or change in symptoms would prompt re-evaluation. An important aspect of this communication is to make the patient feel welcome to return and comfortable about seeking further re-evaluation.
As with any communication with patients, it is useful to check for understanding and address any questions. It is sometimes prudent to involve family members, with the permission of the patient, to further understanding and improve retention of the instructions.
Just as with consent discussions, educational handouts may help patients recall the information discussed in person. The physician should document the discussion in the medical record with a reference to any printed material provided to the patient. Those materials which have been updated over time should be archived, with an indication of the range of dates when the older version was used.
Physicians often ask if they can delegate the duty of informed discharge to staff or other health professionals at their office or hospital. This can be acceptable; however, the responsibility remains with the delegating physician and therefore physicians are advised to be satisfied the individuals accepting the delegated task of informed discharge have the requisite knowledge, skills and experience to perform the duty.
The bottom line
Canadian courts are mindful of the imbalance of knowledge in the doctor-patient relationship, recognizing physicians have the expertise and more medical knowledge or experience than patients. However, there is also recognition that patients must generally take some responsibility for their own care, and can better do so if they have received instructions.