To the Editor:—

As an anesthesiologist who became a medical malpractice defense attorney, I read with interest the article by Tait et al.  1as well as the accompanying editorial by Coté. 2The issue of informed consent came to mind.

When practicing anesthesiology, I thought I did a fair job of obtaining informed consent from the patient. Now that I am defending physicians, I realize the importance of communication regarding informed consent. A large number of lawsuits are filed because the patient believes the physician did not spend enough time discussing procedures, alternatives, risks, or benefits of the planned medical intervention.

Dr. Coté offers an excellent example when he says he makes “a note in the record that these issues have been discussed with both the surgeon and the family and that everyone has been informed of the risks and has agreed to proceed.” A written record in the chart is evidence that informed consent has been obtained. Be aware that evidence is not true or false; it simply is offered to prove the existence or nonexistence of a fact. The jury will determine whether the patient truly gave informed consent based only partly on this written evidence of documentation in the chart. Testimony by the physician, patient, and any other third parties present will also be considered as evidence of whether informed consent was obtained.

Documentation of informed consent in the chart should not be considered solely as an exercise to “keep the lawyers at bay.” Informed consent is an interaction between the physician and the patient that truly educates the patient and allows both parties to participate in care decisions. Most patients want to know what is going to happen and what adverse events could occur. Patients often research medical conditions on the Internet and wish to discuss their thoughts with their physicians. It is important for physicians to consider patients’ input.

When applying informed consent concepts to the child with an upper respiratory tract infection, the study by Tait et al.  can provide a basis for discussion. The anesthesiologist should explain that there are certain risk factors for perioperative respiratory events in children with upper respiratory tract infections. A discussion of the risk factors and the anesthesiologist's assessment of them should be discussed. It should be stated that although children with acute and recent upper respiratory tract infections are at greater risk for respiratory complications, most of these children can undergo elective procedures without a significant increase in adverse anesthetic outcomes. The anesthesiologist and the parents of the child can then weigh the risks versus  the benefits. This informed consent discussion should then be documented in the chart. In some cases, the parents may wish to delay the surgery in spite of the anesthesiologist's confidence in a good outcome. It is a wiser choice to cancel the case than to proceed; a bad outcome could predictably end up in an attorney's office.

Having been in solo anesthesiology private practice for 7 yr, I understand the perceived need to keep the operating schedule moving. However, a few extra minutes obtaining informed consent preoperatively are “cost effective” when weighed against the months, if not years, of aggravation and the emotional turmoil of a lawsuit.

Tait AR, Malviya S, Voepel-Lewis T, Munro HM, Siewert M, Pandit UA: Risk factors for perioperative adverse respiratory events in children with upper respiratory tract infections. A nesthesiology 2001; 95: 299–306
Coté; CJ: The upper respiratory tract infection (URI) dilemma: Fear of a complication or litigation? A nesthesiology 2001; 95: 283–5