Lack of Standardized Informed Consent Practices and Medical Malpractice

2014 Virtual Mentor  
The promise of efficient and appropriate health care has never seemed brighter. Telemedicine is providing needed access to medical services to patients in remote locations, research in genetics and genomics is teaching us more about human physiology and making personalized medicine possible, injuries and illnesses that were disabling or lethal in the not-too-distant past are now preventable and treatable. One might think that these advancements would contribute to a minimal standard of care for
more » ... most medical conditions regardless of where a patient lives and seeks treatment. But, as the current research on variations in medical care demonstrates, such thoughts are false [1] . For example, a patient living in Baltimore, Maryland, is five times more likely to undergo a lower-extremity bypass for peripheral arterial disease of the leg than one living in Temple, Texas, while a patient with prostate cancer is three times more likely to be treated with a radical prostatectomy if he lives in Salt Lake City, Utah, than if he lives in San Francisco, California [2] . Whether it is the underuse of care, the overuse of care, or the inappropriate use of medical resources, national standards for health care are elusive. Unwarranted variations in medicine not only have implications for physicians, patients, and payers but also have an impact on the law and the way courts and agencies regulate the conduct of physicians and health care institutions. When there is no consistent standard of care with which to assess the behavior of agents in health care, the law faces the formidable challenge of bringing about a fair and just result. This article looks at one particular topic in health law that is affected by variations in care: informed consent and medical malpractice. This is by no means the only legal matter that is tested by unpredictable practices in health care, but this example provides insight into how the law is attempting to adapt to fickle standards of care. Measuring a Standard of Care Variations in medical care can play a tremendous role in legal proceedings given that "the law attributes normative significance to the medical standard of care" [3] . Courts make determinations on whether or not a physician is liable for the injuries sustained by a patient during or following a medical intervention based, in part, on whether the physician deviated from the standard of care [4] . In order to ascertain exactly what the standard of care should be, courts rely heavily on the testimony of medical experts who possess the appropriate knowledge, education or training, skills, or experience to testify about the standard under scrutiny [4]. Two Standards for Informed Consent The manner in which informed consent is achieved depends on the way the physician and the patient share information and how the patient ultimately makes her decision
doi:10.1001/virtualmentor.2014.16.02.hlaw1-1402 pmid:24553332 fatcat:hrzbbotosvb65nfjzxm4ptmbbm