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Family, Ethics, Informed Consent
and Medicolegal Issues
James C. Rucinski
Doctor, my doctor, what do you say … ? (Philip Roth)
Stop lying! You know, and I know, that I am dying. So do at least
stop lying about it! (Leo Tolstoy, 1828–1910)
To understand the dying man you have to read Tolstoy’s The Death of Ivan
Ilyich. [The Editors]
The wind whistles through the cracks in your call room window when the
emergency department (ED) calls, and suddenly you find yourself in the maelstrom of that environment, speaking to a small group of extremely anxious
strangers—having to explain that an immediate operation will be required to
save their beloved one. The operating room (OR) is ready.
Obtaining informed consent is a practical combination of salesmanship,
ethical problem solving, and psychological nurturing. It involves the rapid marketing of one’s own skills and plan for treatment. It requires the recruitment of
the patient and the family as allies in the decision-making process. More than a
legal requirement, however, informed consent requires an ethical commitment
to the patient, your peers, and yourself.
8
Salesmanship
Begin by explaining the problem and your proposed treatment using the
same words and language that you might use in speaking to one of your nonmedical relatives. Describe the expected benefits of operation and what the con-
sequences of alternative treatment approaches might be. (What happens if we do
nothing.) Offer several scenarios. Take a case of obstructing carcinoma of the
James C. Rucinski
New York Methodist Hospita l, Brooklyn, NY, USA
M. Schein et al. (eds.), Schein’s Common Sense Emergency Abdominal Surger y,
DOI: 10.1007/978-3-540-74821-2_8, © Springer-Verlag Berlin Heidelberg 2010
73
74 James C. Rucinski
sigmoid colon, for example. At one end of the spectrum is nonoperative management, which almost certainly will result in a slow and difficult death. At the other
end of the spectrum is rapid recovery from operation with long-term cure of the
disease. In between lay the potential difficulties of perioperative complications
or death, recovery with disability, or recurrent disease. It is crucial that you believe in the plan of treatment that you propose. If this is not the case, and the plan
is not acceptable to you but dictated to you from above, then let the responsible
surgeon (your boss) conduct his or her own preoperative “negotiations” with the
patient and the patient’s family.
“Sell” yourself to the patient and family as a scientific expert who recognizes
the needs of another person and is participating with them in solving a difficult
problem. Include a description, with approximate probabilities, of the most common
“problems” (complications) for the proposed procedure in your particular patient.
You will need to make an estimate based on general and specific information. For
example, the risk of mortality for elective colon resection may be negligible, but in
an elderly patient with acute colonic obstruction and hypoal buminemia the odds
of dying may be one in four (> Chap. 6). Discuss general potential postoperative
complications such as infection, hemorrhage (and risk of transfusion), poor healing, and death. Then, mention the unique complications specific to the procedure
you are proposing to undertake, such as common bile duct injury or bile leak in
laparoscopic cholecystectomy.
It is crucial that before any major emergency abdominal operation you emphasize that a reoperation may be necessary based on your operative finding or if
a problem subsequently develops. This will drastically facilitate the “confrontation” with the family when a reoperation is indeed indicated (> Chap. 52); they
will understand that the reoperation represents a “continued management effort”
rather than a “complic ation .” Minor complications, such as phlebitis arising from
perioperative intravenous therapy, may contribute to information overload and
probably should be omitted. Try to conduct the above “script” in a relatively quiet
setting—away from the usual chaos of the ER, surgical intensive care unit (SICU),
or the OR. Use simple language and repeat yourself ad libitum; stressed family
members may have difficulty grasping what you say. Offer the opportunity to ask
questions and assess whether there is understanding of your discussion. The
more they understand initially, the fewer “problems” you will have if complications subsequently develop. Be “human,” friendly, empathetic, but professional.
A good trick is to remind yourself from time to time that the family you are talking to could be yours. Finally, always leave open the possibility that what you
think the problem to be is not correct. Similarly, if you are asked to provide a
prognosis, always allow for the unexpected, both good and bad, so that if a disaster or a miracle should occur this will not be outside the bounds of the possibilities you outlined.
8 Family, Ethics, Informed Consent and Medicolegal Issues 75
Illustrate the Problem
When discussing the prospects of an operation with a patient or a family, we
find that illustrating the problem and the planned procedure on a blank piece of
paper greatly enhances the communication. Draw, schematically, the obstructed
colon: “Here is the colon; this is the obstructing lesion, and here is the segment
we want to remove. We hope to be able to join this piece of bowel to that one, a
colostomy may, however, be needed; this is the place it will be brought out.” Below
the drawing, write the diagnosis and the name of the planned operation. At the
end of the consultation, you will be surprised to see how carefully members of the
family restudy the piece of paper you left with them, explaining to each other the
diagnosis and planned operation. Very often, patients and their relatives are very
enthusiastic about keeping any drawings you make for them.
The Family
When it comes to operation, you advise the patient and he and his family decide.
The patient’s family is your greatest ally in promoting your plan of action. By
involving them at an early point in the decision-making process, you may be able to
make them partners in the relationship that you share with the patient. By avoiding
the family, you may alienate potential allies or worsen an already “difficult” group.
The difficult family is common. Long submerged conflicts and feelings of guilt tend
to surface when a member of the group becomes ill. Recruit them as allies by offering them a chance to participate, by “reading” the nuances of their relationships, and
by confidently and continuously selling yourself as a knowledgeable and compassionate advisor. Use your first meeting with the family to make a good impression
and gain their trust so that you will continue to be trusted if a complication arises
or if further therapy becomes necessary. Remember that if things turn out badly, it
will be the surviving family members who will want to know “What went wrong?”
Ethical Problem Solving
To sell a particular product or idea, one must believe in it. In other words,
based on your knowledge and experience, the operation you offer should appear
ethical to you. It is ethical if it is expected to save or prolong the patient’s life or
palliate the patient’s symptoms and can achieve this goal with a reasonable
risk-benefit ratio. At the same time, you must also be convinced that there are no
76 James C. Rucinski
nonoperative treatment modalities that are safer or as effective as your proposed
operation. The burden of proof is on you.
Medicolegal Considerations
Surgery is the most dangerous activity of legal society. (P. O. Nystrom)
The medicolegal dangers associated with emergency abdominal surgery
greatly depend on where you practice. In some countries, surgeons can get away
with almost anything; in other countries, emergency surgery is a legal minefield.
There are a few simple but well-proven tactics to prevent lawsuits against you:
Have the patient and family “on your side” (as mentioned) by being empathetic,
caring, honest, open, informative, and at the same time professional. Young surgeons
tend to be overoptimistic, trying to cheer up the family. A common scenario finds the
surgeon emerging from the OR, assuming a “tired hero” pose, and announcing: “It
was smooth and easy; I removed the cancer from the colon, relieving the obstruction.
I was able to join the ends of the bowel together—avoiding a colostomy. Yes, your
father is stable, he took the operation very well, let’s hope he’ll be home next week for
Easter (or Passover or Ramadan).” Such a script is somewhat misguided in that it may
raise high hopes and expectations, with subsequent anger and resentment if complications should develop. The better script might be: “The operation was difficult,
but we managed to achieve our goals. The cancer is out, and we avoided a colostomy.
Considering your father’s age and other illnesses, he took it well. Let us hope for the
best, but you must understand that the road to recovery is long, and as I mentioned
before the operation, there are still many potential problems ahead.”
Detailed informed consent (
Documentation. This is crucial as “what has not been documented in writing
did not actually take place.” Your notes can be brief but must encompass the essentials. Prior to an emergency laparotomy for colonic obstruction, we would write:
“78 YO male patient with hypertension, diabetes, and COPD [chronic obstructive
pulmonary disease]. Three days of abdominal pain plus distension. Abdominal
X-ray—suggesting a distal large bowel obstruction—confirmed on Gastrografin
study. APACHE II score on admission 17—making him a high risk. Therapeutic
options, risks, and potential complications, including anastomotic leak, wound
infection, respiratory failure, explained in detail to the patient and family, who
accept the need for an emergency laparotomy. They understand that a colostomy
may be needed and that further operations may be necessary.” A few years later—in
court—this short note will prove invaluable to you.
>
Fig. 8.1).
8 Family, Ethics, Informed Consent and Medicolegal Issues 77
Fig. 8.1. “Is he going to sign?”
Avoid Selling Autopsies Under Anesthesia
We compared you above to an astute salesman, interacting with the patient
and the patient’s family. In this capacity, you, a respected clinician, can easily sell
anything to the trusting clients. Be honest with yourself and consider as objectively as possible the risk-benefit ratio of the procedure you are trying to “sell.”
It may be easy to convince a worried family that a (futile) operation is indeed
necessary and then at the inevitable M & M (morbidity and mortality) meeting
(> Chap. 59) to explain that the family forced the AUA (autopsy under anesthe-
sia) on you. Easy and ethical do not always coexist!
“One should advise surgery only if there is a reasonable chance of success. To
operate without having a chance means to prostitute the beautiful art and science of
surgery.” (Theodor Billroth, 1829–1894)
Concluding Remarks
Not only is what you say important but also how it is said. Introduce yourself and all members of your team who are present. Shake hands with all members of the family. Conduct the “session” in a sitting position—you sitting at eye
78 James C. Rucinski
level, or lower, with the patient and the patient’s family. Maintain constant eye
contact with each of them—do not ignore the ugly daughter hiding in the corner
of the room—she may be the one who becomes your enemy. Be “nice” but not
“too nice”—this is not the time to smile or joke around. Just play the serious
surgeon committed to the well-being of the patient. This surgeon is you, so play
yourself!
Nothing is truer than the cliché that should be constantly replayed in your
mind: would you recommend the same treatment to your father, mother, wife, or
son? Studies show that surgeons are much less likely to recommend operations
on themselves or their loved ones. Do unto others as you would have them do
unto you—the golden rule.
“The patient’s family will never forgive a guarantee of cure that failed and the
patient will not let the physician forget a pronouncement of incurability if he is so
fortunate as to survive.” (George T. Pack, 1898–1969)
Before the Flight: Pre-Op Checklist
Moshe Schein
The pilot is by circumstances allowed only one serious mistake,
while the surgeon may commit many and not even recognize his own
errors as such. (John S. Lockwood)
Like any military or commercial pilot, prior to any flight, you have to go
over a “checklist” (> Fig. 9.1). In fact, the need to check everything obsessively is
more crucial to you than to the pilot. For while a team of dedicated and welltrained maintenance professionals surround the pilot, you are not uncommonly
surrounded only by jerks. We do not want to be abusive or rude, but let us be
realistic—at 2 a.m. your intern or junior resident is much more interested in his lost
sleep than your prospective operation. And the anesthetist? Your emergency case
is just a pain in the ass. The sooner he or she can administer the gases, the sooner
he or she can dump your “case” in the recovery room or intensive care unit and
the sooner they can crawl under the comfort of their warm duvet. The nursing
staff? Forget them. Not in vain today are they called OR technicians. (Lest we be
accused of painting with too wide a brush, there are always the wonderful exceptions in this scenario; let them know they are appreciated!)
So face it—you are alone; it is always a solo flight, and you can count only on
yourself. You are responsible for the success, failure, morbidity, mortality, and po-
tential lawsuit. His or her fate is in your hands. This patient, regardless of how many
people are buzzing around him, is yours. So, wake up and go over the checklist.
9
The Checklist
Does the patient really need the operation? The cliché that it is more dif-
ficult to decide when not to operate than when to operate is mentioned elsewhere
in this book. Variations of this aphorism are circulating around the world in
many languages. But, even more difficult is to decide against the operation after
the operation has been scheduled. So, you decided to book the patient for appendectomy based on what the chief resident told you over the phone—that “the CT
[computed tomograph] is compatible with acute appendicitis”—and now, when
you arrive in the OR, you find the patient smiling and sitting in bed with a soft
and nontender abdomen. Do you want to operate on the CT or the patient? You
Moshe Schein
Marshfield Clinic Ladysmith Center, 906 College Avenue, Ladysmith, WI 54848, USA
M. Schein et al. (eds.), Schein’s Common Sense Emergency Abdominal Surger y,
DOI: 10.1007/978-3-540-74821-2_9, © Springer-Verlag Berlin Heidelberg 2010
79
80 Moshe Schein
Fig. 9.1. “Doctor, show me your pilot’s license.”
do not need big balls (or ovaries) to book a patient for operation, but you need
large balls to cancel the operation and order the patient back to the floor (ward).
You need huge balls to remove the patient from the operating table and massive
balls to tell the anesthetist to wake him up … but if you palpate a large appendiceal mass (see > Chap. 28) after the induction of anesthesia and abdominal wall
relaxation—what is the point of continuing?
Examine the patient before the patient is put to sleep. Never ever—we
repeat—never, never, never, ever operate on a patient without having examined the
patient yourself; if you do, then you are a butcher. That the endoscopist visualized a
“bleeding ulcer” and the patient continues to vomit blood may be an indication for
operation, but this is your chance to diagnose the large spleen and ascites, which
were hitherto overlooked by the others. You do not want to operate on a Child’s C
portal hypertension patient, or do you? (See > Chap. 17.)
Look at the X-rays and imaging studies. Review all X-rays and imaging
studies by yourself. Do not rely only on what the radiologist said or wrote. You
may pick up findings, which may move you to cancel the operation or to decide
on a different incision.
Position the patient. Already before you start, you have to have a general idea
what you are going to do or what you may have to do. This has an impact on your
patient’s position. For example, does the patient need a Lloyd-Davies position, offering access to the anus and rectum? This may be needed during colorectal procedures—to insert a scope, to decompress the colon, or to insert a stapler. You do not
want to have to stop the operation and place the patient in the correct position or
to send the intern crawling under soggy drapes to play peekaboo with the anus. In
9 Before the Flight: Pre-Op Checklist 81
whatever position your patient is to be, check that all limbs are protected and well
padded at potential pressure sites. Poor positioning on the operating room (OR)
table may result in damage to nerves, skin ulceration, and compartment syndrome
of the extremities—and a lawsuit.
Warm your patient. See that the patient is well covered and warmed. Hypo-
thermia increases the likelihood of postoperative infections and contributes to
intraoperative coagulopathy.
Think about preventing deep vein thrombosis (DVT). Prevention of DVT
should be initiated before the patient is put to sleep—not after the operation. Any
abdominal procedure lasting longer than 30 min is associated with a moderate
risk of DVT; you can add to this specific risk factors such as smoking, use of oral
contraceptives, previous history of DVT, age, obesity, presence of a cancer, and
so forth. But, instead of pondering too much—why don’t you provide all your
patients undergoing an emergency abdominal operation with DVT prophylaxis?
Whether it is in the form of subcutaneous heparin or calf compression depends
on what your OR can offer. Bear in mind that anticoagulation is not good for an
exsanguinating patient. We have seen young patients dropping dead from pulmonary embolism a few days after appendectomy and young women developing
intractable postphlebitic syndromes following appendectomy performed for pelvic inflammatory disease. Always think about this.
Is the bladder empty? Most patients undergoing emergency operations
arrive at the OR with a urinary catheter in place; for the rest, you will insert the
catheter on the table. But, if contemplating a lower abdominal procedure on a
noncatheterized patient, you have to check that the bladder is empty. When the
bladder is full, it may look to you like the peritoneum. Bladder distension may
also mimic a surgical abdominal condition, not rare in a mentally challenged
patient.
Think antibiotic prophylaxis (see > Chap. 7).
Document everything (see > Chap. 8).
The formal “OR time-out”—the final review by the nursing team of the
side, site, and nature of the procedure—cannot, and should not, come instead of
your own checklist.
Now, you can go and scrub. While doing so, continue to think and contemplate about what you are going to do. Do not behave like Tolstoy’s surgeon in War
and Peace: “He … joked … and chatted carelessly, as a famous surgeon confident
that he knows his job will often chat while he tucks up his sleeves and puts on his
apron, and the patient is being strapped to the operating table. ‘I have the whole
business at my finger-tips, and it’s all clear and definite in my head, When the
time comes to set to work I shall do it as no one else could, but now I can jest, and
the more I jest and the cooler I am the more hopeful and reassured you ought to
feel, and the more you may wonder at my genius’.”
82 Moshe Schein
Remember:
Many lives have been saved by a moment of reflection at the scrub sink. (Neal
R. Reisman)
You are the captain of the ship—behave like one; the sight of a euphoric
surgeon dramatically entering the room with scrubbed hands held high in the air
is pitiful.
“Poor judgment is responsible for much bad surgery, including the withholding
of operations that are necessary or advisable, the performance of unnecessary and
superfluous operations, and the performance of inefficient, imperfect, and wrongly
chosen ones.” (Charles F.M. Saint, 1886–1973)
The surgeon, like the captain of the ship or a pilot of an aircraft, is responsible for
everything that happened. His word is the only one that cannot be gainsaid. (Francis
D. Moore, 1913–2001)
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