Abstract
Every surgical act could be considered a criminal offence, were it not for the patient’s consent. The latter formerly used to be considered implicit but it now has to be made explicit, which may include signing an informed consent document. In case of litigation, the surgeon may be required to provide evidence that the patient received full information and was in a position to give informed consent. Every adult individual is supposedly able to understand and to recall technical information on any specific operation; we know how unrealistic this is. The information should be complete, including on complications least likely to occur; it should also be made understandable to the patient. Assuming this would be possible, the surgeon may be requested later on to provide evidence that such information was provided. How to prove this remains an unsolved problem. A stereotyped informed consent document will be no obstacle to a determined lawyer. Unless every patient receives a customised information booklet written with assistance from a lawyer, the surgeon will always have difficulties in providing evidence that the patient was fully informed. Litigation will often end up with patient and surgeon presenting two irreconcilable versions. One of the reasons is poor retention of information by the patient. A number of studies all showed that retention of basic information is poor and falls down to 50 % after one week and 18 % after 6 months; besides, any “unpleasant” information will be selectively forgotten. In countries that do not have a no-fault compensation system, the only way for some patients to obtain compensation for a disability or financial harm following surgery is to sue the surgeon for malpractice. Lawyers have found out that it was easier to plead the absence of informed consent. We have no real possibility to prevent this, and the quest for absolute security would be hopeless and would result in a paranoid behaviour on the part of the surgeons. Judiciary insecurity has become part of our everyday life and we must cope with it; no-fault compensation systems may improve this but only to some extent. It is best to treat only patients with whom a confident relationship appears possible, as we know that they will usually not quite understand what is going on and will anyway forget most of the information provided.
Theses abstracts were prepared by Professor Dr. Frantz Langlais. Correspondence should be addressed to him at EFORT Central Office, Freihofstrasse 22, CH-8700 Küsnacht, Switzerland.
