Originally published December 2012
The principle of informed consent constitutes one of the central pillars of Canadian health law. The necessity of obtaining a patient's informed consent before administering treatment has been repeatedly recognized and affirmed by Canadian courts at every level. At times, the burden that consent places on physicians may be seen to be onerous. Some physicians mistakenly believe informed consent is necessary only in situations where the treatment or intervention is complex or has high inherent risks, and does not necessarily apply for frequently performed procedures and treatments of a more minor nature. However, this approach may not be condoned by a court.
Case example: Inadequate consent discussion
A 43-year-old, right-hand dominant female lacerated her left thumb while preparing food. Her past history was remarkable for a mitral valve replacement and permanent atrial fibrillation treated with warfarin and a beta blocker.
As the wound continued to bleed, she went to an emergency department. She was concerned about receiving a local anaesthetic because a friend, who had just completed a series of facet joint blocks, had incorrectly warned her that local anaesthetics injected near a joint could lead to arthritis.
On examination she had a 5 mm laceration of the distal phalanx of the volar aspect of the left thumb. Tendon function appeared to be intact. After examining the wound, the emergency physician advised her that there were 3 choices for anaesthetic: local infiltration, digital block, or median nerve block. The physician had received additional training in regional anaesthesia and was very experienced with median nerve blocks. He advised the patient that it involved only one injection and "it was safe enough to use on kids." The patient expressed her concerns with respect to arthritis; these fears were allayed by the physician as he explained that the injection would not be intrarticular. At that point the patient stated "just do what you think is best ..."
The block was performed uneventfully using 5 cc of buffered lidocaine. The patient did not report any parasthesias during the injection. The laceration was repaired and the patient was instructed to follow up with her family physician in one week for suture removal. At the time of the visit with her family physician, she reported persistent numbness and weakness in her left hand. The physician noted there was hypoesthesia in the distribution of the median nerve and weakness of the thenar musculature.
The family physician referred the patient to a plastic surgeon who agreed the clinical picture was consistent with a median nerve injury, and she confirmed this with an electromyogram (EMG). Several months later the patient underwent neurolysis of the median nerve. Despite the surgery, her left hand remained compromised with sensory and motor deficits, and she was unable to return to her previous employment as a secretary.
Two years after the event, the emergency physician received a statement of claim alleging inadequate consent and negligent performance of the median nerve block. During the pre-trial discovery proceeding it became apparent the physician had a limited understanding of the potential complications of the procedure, particularly with respect to the risk of median nerve injury.
The experts' opinions
Peer experts retained by the plaintiff stated the emergency physician did not meet the standard of care of providing the patient with adequate information on the risks of the procedure. They also maintained that a median nerve block was unnecessary given the small size of the laceration. Lastly, they noted there was greater risk of a peri-neural/carpal tunnel hematoma in this anticoagulated patient.
The experts for the defendant physician were supportive of his decision to use a median nerve block. They noted that although the majority of emergency physicians would have chosen infiltration or a digital nerve block, a credible minority of physicians would have used a median nerve block. As to the consent issue, their support was guarded.
Two questions at trial
The matter proceeded to trial with two main questions to be decided: Was the procedure performed negligently and was the consent discussion adequate?
In answer to the first question, the judge favoured the testimony of the defence experts that a respectable minority1 of physicians would have chosen a median nerve block. In his judgment he made the following comments and citations:
"... the median nerve block was a surprising choice but not a negligent one."
"... it seems akin to shooting a mosquito with an elephant gun ..."
"This choice was an error in judgment,2 but not a negligent one. There is no evidence that the procedure was performed negligently."
A physician is not negligent if he/she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though other doctors adopt a different practice. (Sidaway v. Bethlem)
The judge's decision
As to consent, the judge considered the following 3 issues:
Does "do what you think is best" constitute informed consent?
Despite this statement of acquiescence, the judge felt the physician still had an obligation to discuss the risks and the benefits of the proposed treatment. Based on the physician's evidence given at the discovery proceeding, which demonstrated a limited understanding of the potential for median nerve injury, the judge concluded the patient was not adequately advised of the risks.
Was there a need for an elevated standard of informed consent to discuss the special or unusual risks of the procedure, knowing that the patient had particular concerns around the use of local anaesthetics?
The physician was well aware of the patient's anxieties around the use of local anaesthetics. The judge felt this concern warranted a detailed discussion of potential risks and benefits of each proposed treatment.
Would a reasonable patient choose to have the procedure done?
The judge concluded a reasonable patient would not have chosen to undergo the median nerve block as there were other equally effective and safer choices for anaesthesia, neither of which carried the risk of a permanent disabling median nerve injury. The judgment states "... the defendant is liable to the plaintiff because a reasonable person, in the position of the plaintiff, would not have consented to a median nerve block under the circumstances."
The CMPA paid an award to the plaintiff on behalf of the defendant member.
The bottom line
When determining consent for a minor procedure, physicians should consider the following:
A consent discussion must take place with the patients prior to common minor procedures or treatments. That discussion should be documented.
Patient-specific circumstances may mandate a more thorough discussion of risks.
If patients have special concerns, these may require a more comprehensive informed consent discussion.
Being fully aware of the risks associated with commonly performed minor procedures or treatments.
When deciding on a medical intervention, considering other effective options with lower complication rates. Informing the patient of those options.
If choosing to manage common conditions in a substantively different way from colleagues, considering if other credible physicians are using similar approaches and if any evidence supports their treatment.
"When the subject matter requires expert knowledge in a specialized area, and qualified, respected specialists cannot themselves reasonably agree on the appropriate conduct, common sense dictates that the court should not decide that one body of opinion is more persuasive than another." (Pitman Estate v. Bain)
The term error in judgment is a misnomer. In fact, an error in judgment is not an error but refers to a matter of judgment in clinical decision making. An error in judgment (or more accurately, a matter of judgment or the exercise of judgment) is a reasonable decision or choice made carefully at the time, but in retrospect might not be considered by some as the best choice or decision.