Ezra,
As someone who works with bioethics and biomedical researchers, 'informed consent' is actually more akin to "the doctor explained the procedure and the benefits/risks to me, maybe gave me a study aid, and then asked if I had any questions". It depends a lot on the inquisitiveness of the patient to figure out extra information that was not presented. Not saying that the current system shouldn't go further but, to quote Joseph Heller, "It is both unncessary and impossible to educate people who didn't ask questions."

To the extent that this system further limits patients rights to sue for malpractice when actual malpractice occurs, this is not a good idea.

If I sign some kind of "shared decision" document and my doctor cuts off the wrong leg or the anesthesiologist is drunk and I die, is my doctor covered? "Hey, he knew the risks going in."

The malpractice lawsuit crisis is largely a fantasy. In reality it is very difficult to get a judgment against a doctor for malpractice. To do so you have to get two MDs to testify on your side, and if you think the thin blue line is hard to break the think white line is even harder.

If a doctor loses a malpractice case you can be pretty confident that the doctor who committed malpractice.

Clearly Mr. Smith (not to speak of Mr. Heller) is no teacher. There are a lot of different personality types and learning styles. To say that people who don't aggressively question medical personnel are "impossible to educate" and that such people should be considered sufficiently informed by whatever the doctor chooses to tell them is despicable.

It's important to keep in mind that patients and families are frequently getting this kind of information in an atmosphere of crisis and heightened emotion. It seems a simple matter of common sense to make it the responsibility of the professionals in the room to go the extra mile to be sure they have all the information they need, and to have much of it in the form of written or web-based materials that can be reviewed later.

Shannon,
It would be great to see surgery rates go down-- as long as patient health goes up or stays the same. Do we have any evidence that this is the case?

The malpractice lawsuit crisis is largely a fantasy. In reality it is very difficult to get a judgment against a doctor for malpractice. To do so you have to get two MDs to testify on your side, and if you think the thin blue line is hard to break the think white line is even harder.

If a doctor loses a malpractice case you can be pretty confident that the doctor who committed malpractice.

This is BS. Here's a homework assignment for you. Go get the most recent journal of the ATLA (american trial lawyers association). Flip to the back and look at the advertisements. Doctors advertising their "services" as "expert witnesses" account for the vast majority of ads.

Its a joke to say that doctors wont testify in court against each other. When you pay someone 10 times what they make in their regular job, they'll say whatever you want them to say in court. Doctors bend over backwards whoring themselves out to these legal firms so they can get their fat $500 per hour legal fees.

You sure as hell arent going to make $500 per hour doing clinical medicine. Its an enormous incentive for doctors to jump in bed with their shark lawyer pimps.

When I talk to my patients about informed consent, I stress that this shouldn't be seen as a "release from responsibility". I look at this as the patient acknowleding understanding of the nature and risks of the procedure. And that's it.

Informed consent does not (or at least should not) imply the patient relinquishing any rights, or the physician refusing responsiblity.

Although shared decision making sounds good in theory, it doesn't hold up in court should the medical outcome goes awry.

Dr. Daniel Merenstein practiced shared decision making with his patient, and look how he got rewarded:
http://depts.washington.edu/gim/calendar/hmcjc_abstracts/JCJul04Article1.pdf

Everyone in the nation has internet access. That access has created the duty to Google. No claim for lack of informed consent has any merit anymore. The patient has access to professional quality data. He has the time and incentive to join chat rooms to learn of the experience of other patients, including disgruntled ones.

The duty to Google has also invalidated all claims of loss of chance. This is a bogus claim invented by rent seeking law profs in the 1970's. Rent seeking lawyer running dogs on the bench picked it up to promote lawyer jobs and enrichment. It means that a delay in diagnosis and treatment of a hidden disorder reduced the chance of a positive outcome by some fraction. The patient now has a duty to research all persistent symptoms, and to change doctors.

The reason the duty to Google is that of the patient is that the patient has second to second facts of his own condition. He is the world's expert on the disease in his own body. He just needs to understand it better with universally available technical information.

Kevin,

THe Merenstein case is precisely why this legislation is needed. I won't go into the particulars here, but for those who are interested in malpractice issues and seeking ways to better inform patients, this is a very interesting case. In essence, Dr. Merenstein was not protected, and should have been since he did everything right.

But this legislation is not so much about tort reform as it is about making sure patients really understand risks and benefits. Shared decision making does not absolve a physician of responsibility to avoid error.

Supremacy Claus, you need to get off your computer and spend more time in the waiting rooms of hospitals, where the average patient can be found. While the Internet contains a great deal of information, much of it is crap, and the rest is not always readily understandable to many Americans. You are also failing to recognize the "white coat effect," the power a doctor's opinion can have on patient perception. And, by the way, not everyone in America has internet access.

I think this is a cousin to Dr. Rob's post earlier about rules for Physicians - one of which talked about "The Plan."

If you leave your visit with a plan that identifies what might be done next if thusandsuch happens then you don't have to demand that whatever be done right now!

If I go for a check-up and to get my mammogram referral I might wonder from the news whether I should really be getting an MRI. If I'm told upfront that IF the mammogram shows something questionable that I may be referred for an ultrasound or an MRI, then I don't have to walk out feeling like I should have DEMANDED an MRI from the start.

It's not just Olympia WA where you can't get internet access. Try most hospitals (with the usual exception of a small patient-information center somewhere that's only barely accessible to patients who are currently sick). For the most part that's a good thing, but it does kinda clobber the idea of getting patients to inform themselves when time is of the essence.

Which really takes us to another part of the ongoing US health debacle, namely that most people only see a doctor when they're actively sick. Ongoing contact with a physician (or PA or RN or LPN or whoever) makes information-sharing so much easier, because the process can begin long before the deicison has to be made.