Spring, 2004
Question: A 73-year-old man underwent elective surgery for repair of an enlarging abdominal aortic aneurysm. He was a married, retired heavy equipment operator with grown children and grandchildren. He understood the need for surgery and its attendant risks, and consented. The surgery was complicated by excessive bleeding, hypotension and a perioperative myocardial infarction. He required prolonged postoperative intubation and sedation. After he had been intubated for 18 days, his wife explained to the surgeon that he would not wish to continue to receive mechanical ventilation "with no recovery in sight." The surgeon was uncertain if he would recover but stated recovery was possible and he believed the patient's preoperative consent included consent for postoperative complications such as he now had. The patient had no written advance directives or surrogate appointments. How would you advise the Ethics Committee?
Response: For ease of discussion, I will assign names to the principals: Mr. and Mrs. Miller (patient and spouse), Dr. Reilly (surgeon), and Ms. Dumont, MSN (ethics consultant). Ms. Dumont should review Mr. Miller's chart and talk with his nurses, and also meet separately with Dr. Reilly and Mrs. Miller. Ms. Dumont's objectives are to explain the process and purposes of ethics consultation, and to listen, repair possibly damaged relations, correct misunderstandings, establish respect and trust, and clarify controversial "facts of the case."
Preoperative consent is one such fact. "Valid informed consent" requires communication between physician and patient that accentuates disclosure of information, understanding, trust and permission. They must discuss diagnosis, the particular surgery, risks, probable and possible outcomes, patient's goals, and the likely course if surgery is not performed. This might be encapsulated in a written form and should be documented by Dr. Reilly in a narrative progress note.
Preoperative consent typically authorizes surgery and interventions necessary to save the patient's life intraoperatively, immediately following surgery and for a postoperative period should there be an emergency. Its exclusive governance ends when the patient is judged medically and surgically stable or when the patient needs therapies that require new consents.
Ms. Dumont should seek evidence of Mr. Miller's specific expressed preferences to treat postsurgical complications because - if existent - they strengthen Dr. Reilly's desire to treat despite the patient's failure to improve.If they are lacking, she should request Dr. Reilly to review both his reasons for continuing invasive interventions and the goals of this plan, because a simply principled confidence in preoperative consent is misplaced. 1 Perhaps Dr. Reilly thinks that Mr. Miller - in conversation and on a signed form - gave blanket consent. "Blanket consent" is both a concept and a practice that often accompanies but also contraindicates the essentials of informed consent. 2 Conceptually it seeks authentication of general actions, risks, outcomes and goals not mutually addressed by physician and patient prior to surgery. It is typically expressed in phrases such as "treat as necessary," "unforeseen conditions," "unanticipated consequences (or complications)," and "any further procedure... any other therapeutic procedures..."
In practice it often appears in consent forms that hospitals require patients to sign. Widespread practice notwithstanding, blanket consent detracts from the essentials of informed consent.3 Also situations such as Mr. Miller's typically include some postoperative actions that require new permissions, for example, additional surgeries, transfusions, cardiac catheterization, pacemaker, lumbar puncture. 4 And, these consents had to have been sought from a different person, his wife, because Mr. Miller is incapacitated, and as he did not name a surrogate, Mrs. Miller is the legitimate decision maker. Existing blanket consents should not be presumptively dismissed, but the claim that blanket consent governs all sequelae of surgery carries a high burden of proof.
In this vein, consider that consent is primarily a patient-centered action, not - as implied in blanket consent - a waiver of professional liability or a medical blank check. Informed consent attends to a patient's contemporaneous bodily integrity, rights, dignity, intelligence, preferences, interests, goals and welfare insofar as the patient's preferences, interests and goals are known and clearly understood by decision makers. Excessive reliance on preoperative consent mistakenly falsifies these priorities by implying that a first consent is prescient or that patients' circumstances, and hence their rights, interests and goals cannot change. But these claims are implausible, and so a typical preoperative consent does not rise to the level of governance of, as might be construed in Dr. Reilly's view, a last will and testament. 5
Now consider a second contested fact of the case: "recovery." Preoperative consent notwithstanding, Mr. Miller is imperiled with progressive, preoperative conditions, dire surgical complications, an inability to breathe, and sedation to unconsciousness 18 days postoperatively. Experienced clinicians see a few of these patients get better, so neither Dr. Reilly's optimism nor Mrs. Miller's pessimism are prima facie unreasonable. Ms. Dumont should seek her own understanding of the patient's condition and prognosis and explore all parties' views of these variables.
For example, what are Mr. Miller's prospects of survival to discharge from the ICU, an intermediate unit and the hospital? To nursing home or home? With what intensity of outpatient care? With what likelihood of emergency readmissions? With what concurrence with his preoperatively expressed preferences and goals? Do Dr. Reilly, the consultants, Mr. Miller's nurses, and Mrs. Miller have the same understanding of these matters? If not can this distance be closed or shortened? If it can, Ms. Dumont should clarify agreed-upon goals and propose a timetrialed plan of life-sustaining treatment in which everyone hopes for the best but Dr. Reilly accedes to Mrs. Miller's wishes if Mr. Miller fails to improve as agreed upon within the timeframe.
James E. Reagan, PhD
Clinical Ethicist Enfield, NH
Outcome: A time-limited trial of therapy for an additional five days was suggested by the ethics consultant and agreed upon by the patient's wife. When he failed to improve during that time, his life-sustaining therapy was withdrawn as requested by his wife, and he died.
Footnotes
1 Would that Dr. Reilly had encouraged Mr. Miller to write a Durable Power of Attorney for Health Care, and that this priority be emphasized to surgeons as a professional standard of care in seeking informed consent from high-risk patients.
2 President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Making Health Care Decisions, Volume One: A Report of the Ethical and Legal Implications of Informed Consent in the Patient-Practitioner Relationship. Washington, DC, 1982. Leaman TL, Saxton JW. Preventing Malpractice. New York: Plenum Medical Book Company, 1993. 0 Miller RD. Problems in Hospital Law, Sixth Ed. Rockville, MD: Aspen Publishers, 1990. Woodside FC, et al. The Law of Medical Practice in Ohio. Rochester, NY: The Lawyers Co-Operative Publishing Company, 1989.
3 President's Commission, 106 ff.
4 Hospitals' governing bodies decide which interventions require specific informed consents. Practice is typical - predictable - but not universal.
5Miller writes, "Courts have ruled that these [blanket] forms are not evidence of consent to major procedures because the procedure is not specified on the form." p.247.
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