By Peter Laird, MD
As a practicing internal medicine specialist, applying the legal requirement of informed consent at times appeared to be an act of absurdity with many common ailments. I clearly documented and performed the legally required informed consent many times over for treatments as mundane as ear infections and other illnesses that often times are self limited and would resolve without any treatment at all rendered. Comfort of the patient at times became the motivating force behind these treatments. For myself and my colleagues, the complaint of negligent care by tort law most often came in the failure of proper informed consent or lack of informed consent. The legal basis of informed consent is summarized well in an essay on this subject:
The prototypical informed consent case arises when a patient suffers an injurious, nonnegligently-caused outcome of a diagnostic or therapeutic medical procedure.20 An outcome that is nonnegligently caused is one which arises in a certain percentage of cases regardless of the care of the physician, due to physiological differences from the norm or particular susceptibilities of a patient, or one that arises from an act or failure to act of the physician but such act or failure to act is within the standard of care.21 In order to recover damages for that outcome, the plaintiff must establish the elements of negligence, that: (1) the physician had a duty to disclose particular information to the patient; (2) disclosure did not occur; (3) (a) but for the nondisclosure, the tendered procedure would have been refused, and (b) that the tendered procedure was the cause in fact of plaintiff's injury; and (4) the plaintiff suffered a compensable injury.22
The legal requirement is that all medical treatments must be understood and accepted by the patient or the legal guardian and consent to each medical intervention. The risks, benefits and alternative treatments must be explained and in addition, the physician must ascertain that the patient understood these issues. I have read and heard my colleagues in the various specialties spell out very specific risks and benefits that were then duly documented in the medical record, many in precise and at times graphic detail. Many surgical specialists have gone so far as to video tape standardized informed consents for routine procedures such as elective hip replacements and having the patient attend pre-surgical patient education classes. In these classes, all conceivable outcomes and expectations are listed with documentation of pertinent studies when indicated.
Since entering the world of American style dialysis, the first culture shock I encountered was the number of decisions made by the medical team with little clear and precise informed consent such as sodium modeling or ultrafiltration rates for instance. Because the legal standard for informed consent is a community standard, all that a nephrologist must do to meet that requirement is to do what the average nephrologist would discuss and advise. Sadly, the record for the American nephrology community is greatly lacking compared to all other informed consent procedures I have encountered in my professional life as a physician. Several surveys have documented this unique American nephrology failing:
Patient education and access of ESRD patients to renal replacement therapies beyond in-center hemodialysis
RESULTS: Substantial proportions of patients were unaware of their kidney disease (36%) or were not seeing a nephrologist (36%) until <4 months before first dialysis. The presentation of treatment options was delayed (48% either after or < 1 month before the first dialysis). The majority of ESRD patients were not presented with chronic peritoneal dialysis, home hemodialysis, or renal transplantation as options (66%, 88%, and 74%, respectively). Using multivariate analyses, variables significantly associated with selection of chronic peritoneal dialysis as dialysis modality were the probability of chronic peritoneal dialysis being presented as a treatment option and the time spent on patient education.
CONCLUSION: An incomplete presentation of treatment options is an important reason for under-utilization of home dialysis therapies and probably delays access to transplantation. Improvements in and reimbursement for pre-ESRD education could provide an equal and timely access for all medically suitable patients to various RRTs.
Many patients falsely enter into the dialysis unit believing that conventional in-center dialysis will restore and extend their lives significantly. In my opinion, the American nephrologist fails miserably in the standards of informed consent that I practiced and observed in all aspects of my medical career. Similar studies subsequent to Mehotra's study reveals no improvement in this situation. Sadly, one of the rare randomized and controlled dialysis trials is essentially ignored today despite a significant finding of increased self care dialysis choices for those with improved informed consent:
The impact of education on chronic kidney disease pateints' plans to initiate dialysis with self-care dialysis: a randomized trial
Methods Seventy patients with CKD who were receiving care in a multidisciplinary predialysis clinic were randomized to receive either (1) a two-phase patient-centered educational intervention (phase 1 included educational booklets and a 15-minute video on self-care dialysis; phase 2 included a 90-minute small group interactive educational session on self-care dialysis) in addition to their regular multidisciplinary care, or (2) ongoing standard care and education in the multidisciplinary predialysis clinic. The primary outcome was patients' intention to initiate dialysis with self-care dialysis, assessed by questionnaire.
Results Thirty-five patients were randomized to standard care; 34 completed the study. Thirty-five patients were randomized to the educational intervention; 30 completed phase 1 and 28 completed phase 2. By study end, significantly more patients in the intervention group (82.1%) intended to start dialysis with self-care dialysis compared with the standard care group (50%, P = 0.015). This difference persisted after controlling for the small baseline differences among patients in the two study groups (P = 0.004).
Conclusion A two-phase educational intervention can increase the proportion of patients who intend to initiate dialysis with self-care dialysis.
Despite the positive findings of a randomized and controlled trial increasing patients choice of self care dialysis and the dismal record the American nephrologist has accomplished in the area of informed consent, the intractable attitudes among nephrologists has not budged. I have wondered for several years now how this dichotomy between American nephrology and the other specialties is so diverse and uniformly ignored by this specialty. I have been puzzled even more so is the complete lack of accountability for ignoring such a fundamental fiduciary physician responsibility with few if any consequences for this failure. After all, informed consent is required by law for dialysis patients:
§ 405.2138 Condition: Patients' rights and responsibilities.
The governing body of the ESRD facility adopts written policies regarding the rights and responsibilities of patients and, through the chief executive officer, is responsible for development of, and adherence to, procedures implementing such policies. These policies and procedures are made available to patients and any guardians, next of kin, sponsoring agency(ies), representative payees (selected pursuant to section 205(j) of the Social Security Act and subpart Q of 20 CFR part 404), and to the public. The staff of the facility is trained and involved in the execution of such policies and procedures. The patients' rights policies and procedures ensure at least the following:
(a) Standard: informed patients. All patients in the facility:
(1) Are fully informed of these rights and responsibilities, and of all rules and regulations governing patient conduct and responsibilities;
(2) Are fully informed of services available in the facility and of related charges including any charges for services not covered under title XVIII of the Social Security Act;
(3) Are fully informed by a physician of their medical condition unless medically contraindicated (as documented in their medical records);
(4) Are fully informed regarding the facility's reuse of dialysis supplies, including hemodialyzers. If printed materials such as brochures are utilized to describe a facility and its services, they must contain a statement with respect to reuse; and
(5) Are fully informed regarding their suitability for transplantation and home dialysis.
Once again, for each specialty, it is a community standard set by the specialists themselves of what an average nephrologist believes his patients need to hear. For the American nephrologist, CMS spells out in great detail what is required. It appears that there may be more philosophical barriers to true informed consent amongst the American nephrology community as evidenced by a posting by Dr. Ajay Singh on his The Kidney Doctor blog:
Dialysis Unplugged: Compassionate Withholding of Information, Damned if You Do, Damned if You Don't
I can tell you right off the bat that I do not routinely tell my patients starting dialysis that on average they have a 20% chance of dying in the first year of starting dialysis. Nor, for that matter, do I tell my 70 year stage 5 CKD patient, who I am preparing for initiation of dialysis, that she or he has, on average, 2 to 3 years longevity of dialysis. Of course I want to be truthful to my dialysis patients, but averages are misleading, and ESRD is not a terminal disease. Moreover, two or three additional years of life aren’t something to ignore. . .
I am frankly appalled at the open disregard by a prominent American nephrologist in not explaining the most basic aspect of ESRD, that of mortality with conventional in-center dialysis care to each and every competent patient. I find this completely at odds with my entire medical training and practice and that of my colleagues in high risk specialties where adverse outcomes are common. The most important information that a patient and their family needs is exactly what sort of illness and outcomes they are dealing with at the onset of treatment. The issue of informed consent becomes even more apparent with the publication of intensive dialysis outcomes in JASN today showing significant survival benefits for these renal replacement therapy options. For patients that never hear of the grave risk of death from ESRD, what will motivate patients to seek treatment options that entail sacrifice and great personal effort to accomplish?
In my opinion, the slothful approach to informed consent amongst the American nephrology community is at great odds with many recent studies proving the benefits of alternative dialysis treatment options. If the American dialysis hegemony will ever end, it must first start with a paradigm shift in the attitudes of American nephrologists towards their patients and incorporate respect for patient autonomy into their daily practice much more so than is evident today. It is my opinion and that of available evidence based medical studies on informed consent in the American dialysis industry that change is needed. It must begin one nephrologist at a time. After all, if the American nephrologist is too ashamed to relate mortality to dialysis patients, they may wish to consider modalities that improve this dismal result with each and every competent patient. After all, it is the law.
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