When it comes to surgical procedures, informed consent is a crucial step that patients and their families should never allow to be glossed over by physicians or nurses. It is your chance to make sure that you truly understand the risks versus benefits of the proposed treatment or procedure, as well as who will actually be involved with your care.
In many hospitals around Texas, informed consent is treated as a check-the-box exercise with little thought or discussion. The Texas Medical Association describes informed consent as “more than a form,” and a process including discussion, education, obtaining written consent and medical record documentation.
Baylor Health Care System and Baylor University Medical Center urge their physicians to understand that informed consent requires more than simply securing permission for treatment.
Demand the doctor
Although many doctors tend to rush informed consent with their patients (or even have a nurse do it for them), under Texas law it is a duty that cannot be delegated and falls squarely on the doctor’s shoulders. If a nurse or administrative person asks you to sign consent forms, you should insist on having the informed consent conversation with your doctor first.
Risks versus benefits
When speaking with your doctor, make sure you understand why he or she is recommending the treatment or surgery. Is the diagnosis certain, or is there a differential diagnosis, meaning that there are several possibilities? Be sure that the doctor explains to your satisfaction the risks and benefits or the treatment or surgery, what alternatives you have and the risks and benefits of choosing not to proceed with the proposed treatment or surgery.
In my experience, health care providers tend to emphasize the benefits and only quickly address the risks including paralysis and even death. Even when discussing risk, some doctors say something like, “I am required to tell you that this is a theoretical risk, but I have never seen it happen.”
Avoid the revolving door
In surgical cases, the informed consent process should likely include at least two physicians: the surgeon and the anesthesiologist. In the operating room, the surgeon manages the surgical procedure, but it could be an anesthesiologist or a less-trained certified registered nurse anesthetist (CRNA) who is providing the anesthesia care.
Anesthesiologists are physicians who have completed an undergraduate degree, four years of medical school and then four years of an anesthesiology residency program (after medical school).
According to the American Association of Nurse Anesthetists (AANA), CRNAs must have a bachelor’s degree in nursing (or another appropriate undergraduate degree), licensure as a registered nurse (RN), a minimum of one year of work experience in acute care and completion of both an accredited nurse anesthesia educational program (this typically takes 24-36 months) and the national certification exam.
During the informed consent process, it is important for you to understand the role of the anesthesiologist and the role of the CRNA, if any, during your procedure. Be very clear in asking this question before the procedure, because you may be surprised that the anesthesiologist has no in-person involvement with your case in the operating room.
Two different models of anesthesiologist involvement
Anesthesia care is both important and dangerous. Some anesthesiologists have described anesthesia care as deliberately bringing a patient as close to death as possible, in a controlled manner that allows them to be brought back. In other words, the stakes are high.
Anesthesia care involving both anesthesiologists and CRNAs is billed under one of two models: medical direction and medical supervision. These two models were developed through Medicare guidelines, which were subsequently adopted by most health insurance companies.
Medical direction requires much more hands-on involvement by the anesthesiologist than the medical supervision model.
Under the medical direction model, up to four certified registered nurse anesthetists may be working at one time under an anesthesiologist’s medical direction of anesthesia. Medical direction requires the anesthesiologist to perform and document seven requirements: (1) performing a pre-anesthetic exam and evaluation; (2) prescribing the anesthesia plan; (3) personally participating in the most demanding parts of the anesthesia plan, including induction and emergence; (4) ensuring that any procedures are performed by a qualified anesthetist; (5) monitoring anesthesia administration at frequent intervals; (6) remaining physically present and immediately available for diagnosis and treatment of emergencies; and (7) providing indicated post-anesthesia care.
For the medical supervision model, an anesthesiologist supervises five or more CRNAs at once. During medical supervision, the anesthesiologist is required to be located in the same general area as the CRNA and is not supposed to be otherwise occupied in a way that prevents immediate hands-on intervention, if needed.
In my experience, in medically directed anesthesia care, the anesthesiologist is involved before the procedure in formulating the anesthesia plan. Also, in cases I have handled involving medically supervised anesthesia care, the CRNA performs the pre-anesthesia assessment and makes the anesthesia plan, with little or no input from the anesthesiologist.
For example, I represent a family in Hidalgo County, Texas, in a wrongful death case involving anesthesia care during a surgery at Knapp Medical Center. The anesthesiologist and CRNA in that case both worked for an anesthesia practice group called Northstar Anesthesia, P.A. In reviewing the billing records, we noticed that Northstar Anesthesia, P.A. billed every anesthesia encounter with this patient as medically directed, but the anesthesiologist testified at deposition that she only provided medically supervised anesthesia care.
On the key date in the case, the anesthesiologist did not see the patient, the CRNA did the preanesthesia exam and did not consult with the anesthesiologist about it or the anesthesia plan. When the patient stopped breathing, the records reflect that it took around 20 minutes to get the anesthesiologist into the operating room—even through it was billed at the higher standard of medical direction.
Avoid the revolving door of anesthesia informed consent
Sometimes anesthesiologists conduct the informed consent process and then are not in the operating room during the procedure, instead leaving that important care in the hands of CRNAs. This can be a “bait and switch” situation that is is seldom, if ever, disclosed to the patient, who goes to the operating under the belief that the anesthesiologist will be providing the anesthesia care.
Before any surgery, make sure that you have a clear understanding of the role of the anesthesiologist and CRNA in the operating room during the administration of anesthesia.
Will the anesthesiologist be in the room? Will the CRNA manage the anesthesia, while the anesthesiologist is somewhere else? What is the experience and training of the CRNA? How long would it take to get the anesthesiologist in the room if you stopped breathing?
If you are uncomfortable with the answers to these questions, withhold your informed consent for the procedure until you are satisfied with the level of care that will be provided to you.
Anesthesia malpractice
If you or someone you care for had been harmed by medical malpractice of an anesthesiologist, certified registered nurse anesthetist or hospital, contact the Texas medical malpractice lawyers at Painter Law Firm, at 281-580-8800, for a complimentary consultation to discuss your potential case.
