Background: Orthopaedic surgeons routinely obtain informed consent
prior to surgery. Legally adequate informed consent requires a thorough
discussion of treatment options and risks and proper documentation; however,
there is little data to guide orthopaedic surgeons regarding effective methods
of obtaining informed consent.
Methods: We performed a closed claims analysis on malpractice claims
involving an allegation of inadequate informed consent brought during a
twenty-four-year period with two malpractice insurers. Relevant malpractice
claims were reviewed, and data were abstracted. We then performed statistical
analyses to identify factors that positively correlated with a successful
Results: We identified twenty-eight lawsuits that included a claim
of inadequate informed consent. All of the cases involved elective orthopaedic
surgical procedures; there were no emergent cases. Three cases involved a
disputed surgical site; all three cases involved foot and ankle surgery and
resulted in an indemnity payment.
Documentation of appropriate informed consent in the office notes of the
surgeon was associated with a decreased indemnity risk (p < 0.005).
Obtaining the informed consent on the hospital ward or in the preoperative
holding area was associated with an increased indemnity risk (p < 0.004).
When informed consent was obtained in the office by the operating surgeon, the
risk of malpractice payment was significantly decreased (p < 0.004).
Conclusions: Surgeons may be able to decrease the risk of a
malpractice claim by obtaining informed consent in their offices, rather than
in the preoperative holding area, and by documenting the informed consent
discussion within their dictated office or operative notes.