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Informed Consent or Was It?

Posted Apr 29 2010 12:00am

A California man has filed a $19 million lawsuit against the Children’s Hospital of Los Angeles, claiming he never consented to surgery on his six-month-old son that left the boy with permanent brain damage. When doctors called Eduardo Rivas to tell him his son needed surgery, he declined to consent, but the surgery performed despite his objections, the LA Times reports. Officials claimed Rivas gave his verbal consent, but state investigators found no hospital documents the proved this claim. Hospital officials also failed to provide Rivas with a Spanish interpreter, which violates hospital policy.   Molly Hennessy-Fiske, LA Times

Informed Consent?

There is a lot to be learned from this case.  The first item is the matter of Informed Consent .  Below is a definition from the American Medical Association that spells out the specifics of Informed Consent.

“Informed consent is more than simply getting a patient to sign a written consent form. It is a process of communication between a patient and physician that results in the patient’s authorization or agreement to undergo a specific medical intervention.

In the communications process, you, as the physician providing or performing the treatment and/or procedure (not a delegated representative), should disclose and discuss with your patient:

* The patient’s diagnosis, if known;

* The nature and purpose of a proposed treatment or procedure;

* The risks and benefits of a proposed treatment or procedure;

* Alternatives (regardless of their cost or the extent to which the treatment options are covered by health insurance);

* The risks and benefits of the alternative treatment or procedure; and

* The risks and benefits of not receiving or undergoing a treatment or procedure.

In turn, your patient should have an opportunity to ask questions to elicit a better understanding of the treatment or procedure, so that he or she can make an informed decision to proceed or to refuse a particular course of medical intervention.

This communications process, or a variation thereof, is both an ethical obligation and a legal requirement spelled out in statutes and case law in all 50 states.”

Another issue of note is that, while in this case the hospital had an interpreter, at least during certain points during the events, that is not always the case.  There are many instances of non-English speaking adults bringing family members into a medical situation to interpret.  I have even seen children brought along to a medical visit to interpret for an adult family member. This is not appropriate and ill advised.

There are a number of reasons that family members don’t make the best interpreters in a medical setting:

-Emotional involvement: the interpreter may have his/her own opinion on the treatment advice and thus may put their own “spin” on what the practitioner is explaining.

-Medical terminology: medical interpreting is a specific field of its own.  In particular, dealing with non-English speakers from poorer and third world countries, where the level of care is not on par with care here, the interpreter may act like he understands everything, but may not have a real grasp on what is being communicated.

-Embarrassment: related to the terminology issues are that the amateur interpreter may not want to appear like he doesn’t understand what is being said by the practitioner and is reluctant to tell the patient or patient’s parent or guardian, so therefore may leave out the information not understood.

-Vernacular: One of my colleagues did several months of community service at a clinic that provides health care services to the Hispanic population in her city.  She pointed out to me after I shared this article that many of the “sayings” and descriptions that “everyone knows” are actually sayings that only those of us born and raised here or those who are very proficient in American English as a second language understand.

Her example was using the old saw: “I am getting ready to hit the road.” Literally translated that would not indicate to a non or limited English speaker that one is getting ready to leave!  This works both ways:  “Da mi la lana” literally translated means “Give me the wool”.  It is actually Latino slang for asking for money.  Thus, expressions we all take for granted may be complete nonsense to someone else.

You can imagine how all of this could be compounded if a child were interpreting!

The follow up to this story, which appeared in the media the day after this one was reported was a sad comment, in my opinion:  Los Angeles County Superior Court Judge Luis Lavin had ruled inadmissible a state report, released last month by the California Department of Public Health, that found the hospital could provide no record of Rivas giving consent. State investigators also found that the hospital failed to provide Rivas with a Spanish interpreter in violation of its own policy.

This hospital managed to get by with loose procedures this time, but in the end, if this continues, I expect that they will see more lawsuits and one will eventually come along that they don’t win.

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