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Legal Implications

The general law of consent is that the consent must be obtained after the patient has been given enough information to make a knowledgeable decision. Many states limit the required disclosure to the information that the other health care providers in the region give to their parents. While there has been a great deal written about this requirement for "informed consent," there have been relatively few cases litigating a failure of consent. In many of these cases the physician claimed to have given the patient the required information, but the patient claimed that such information had not been given.

The most important lesson from these cases is that there should always be a written consent. The consent should be specific and should include specific risks and alternatives. The more hazardous the treatment, the more complete the consent form should be. Experimental therapies should have very detailed consent forms. However, most procedures require only a simple consent form, not the elaborate multipage forms that some providers have resorted to. As noted earlier, even a detailed written consent can be rendered ineffective through consent rituals that do not include a dialogue with the patient. This is a significant problem if the consent form is so long an detailed as to be totally unintelligible to the patient.

Consent forms serve three important legal functions:

1. They establish exactly what care the patient is intended to receive.

2. They guard against courtroom battles over what the physician said versus what the patient remembers.

3. They prevent lawsuits over the patients unrealistic expectations about the outcome of the treatment.

That final benefit is often overlooked. A proper consent form detailing the risks of therapy, including possible ineffectiveness, will prevent the patient from later claiming that the physician promised a cure. The prevention of unrealistic expectations is the most important reason to obtain carefully informed consent to all treatments.


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