6. Keep a record of referrals
A patient generally has the right to refuse specialty treatment13 or referral to a specialist,14 once informed of the risks of delay or lack of treatment after making such a decision. If a patient still refuses referral, document the decision in case it results in a delayed diagnosis or an adverse outcome.
Generally, the specialist has the duty to inform the patient of the risks and benefits of the specialty treatment. However, it has been held that a primary care physician still bears some responsibility to assure the welfare of the patient in all phases of treatment.15 Thus, it is prudent to ensure that patients have not been lost to specialty follow-up. In a busy practice it is often difficult, of course, to keep track of the status of all referrals, and specialty offices differ in efforts to keep primary care physicians informed. Use the informed consent process to raise and discuss such issues. Encourage your patients to notify you or your staff if they have experienced a delay in care with a specialist you referred them to.
7. Avoid making guarantees about procedures
All procedures, including associated anesthesia, require a discussion of risks and benefits. If appropriate, also discuss available alternative procedures and your reasons for not recommending them. For example, a breast lump can be imaged, aspirated in the office, or surgically excised. All options need to be discussed and the course of action mutually agreed upon. A patient may not necessarily want the least invasive option.
Avoid assurances or guarantees regarding a specific outcome. Such guarantees can be the impetus for legal action (breach of warranty claim) should the promised outcome fail to occur. Exercise caution, for example, in explaining outcomes and risks for cosmetic procedures. If a patient has a complicated problem or unrealistically high expectations, consider a referral for a second opinion or for management by a specialist.
8. Document, document, document
Documentation is a necessary, final step. It records the process that is vital to good patient care and it may be the only proof that a discussion took place. Legal case opinions shed little light on what represents adequate documentation. Implement a record-keeping strategy that suits your practice setting and style. Products or guides for this purpose are available commercially or through medical societies, malpractice carriers, legislative initiatives, and special interest groups.16 If you use a preset consent form, make sure it is not intimidating or confusing. Initiatives to improve health literacy suggest that literature, to be effective, should be written at the fifth grade level.17
Forms with boilerplate language that simply require a signature are inferior to documents that give details of the meaningful discussion that took place. Drawings or notes stating which family members were present or what questions were asked can demonstrate the particulars of the discussion for a specific patient. It is also useful to document secondary resources you used, suggested, or gave to the patient, such as models, diagrams, pamphlets, CDs, and DVDs.
Putting informed consent principles into practice
Dr. B holds a busy walk-in clinic after-hours in her office. She sees Harry, a 27-year-old man for the first time. Harry is uninsured and presents with fatigue and a 3-month cough. He is a nonsmoker and believes he is tired because he has been working 2 jobs and has had 2 severe viral illnesses in the last few months. Many of his symptoms suggest reactive airways and post-viral cough. However, Dr. B is concerned about other diseases based on Harry’s general appearance, such as Hodgkin’s lymphoma. Dr. B is also anxious, because one of the clinic doctors has recently been sued for missing lung cancer in a young man. She wonders how to best proceed with treatment to suit Harry’s needs and avoid unnecessary liability.
Dr. B does not have the benefit of a long-term relationship with Harry and may feel inclined to suggest an aggressive investigation to avoid missing disease and subsequent litigation. However, establishing good rapport and communicating effectively would better serve them both. Dr. B’s challenge is to ensure that Harry understands that he most likely has a simple disease process, but that they need to consider more serious possibilities. Harry must also understand the consequences of poor follow-up and delayed investigation. Dr. B should explain that deciding how to proceed will be a shared process that leads to a medically sound and financially practical option.
As an example, Dr. B could suggest a course of therapy for reactive airways, such as a beta-2 agonist and inhaled corticosteroid. She should describe both the common and the serious side effects for each. She should also counsel Harry to go over his medications with the pharmacist.
Dr. B may advise a screening chest x-ray now or offer close follow-up and a trial of inhalers for a reasonable period. She should explain that a chest x-ray has diagnostic limitations and that Harry may need further investigations, such as a chest cT or referral. at this point, Harry is ready to share in the decision on how to proceed.
At the end of this discussion, Harry should be asked to “teach back” his understanding of the treatment plan. Dr. B should then document the salient points (at minimum: “cost concerns,” “follow-up necessary to rule out serious pathology,” “risks and benefits of medications discussed and advised to also discuss with pharmacist,” “chest x-ray advised and discussed other investigation options,” and “teach-back method used to confirm plan”).