I’ve been thinking lately about ideas to give patients to help themselves avoid becoming some lawyer’s client someday. Better information is always the best answer. I’ve heard several clients say, after suffering a bad outcome, that if the doctor had been up front about risks, they would have chosen a different treatment method. I’ve also heard several say that the things the doctor says s/he told the patient were never actually said. This is what I call the He Said/MD Said. And anyone who has ever had a surgery knows that some doctors blaze through the consenting process and brush risks off as virtually nonexistent. I distinctly remember one doctor (who I chose not to use) telling me the risks of a proposed elective surgery in less than a minute and then saying: “But that never happens.” I wonder if he’d have remembered telling me that if I ended up with a bad outcome?
So what can patients do to incentivize doctors to give all of the information necessary to make a decision? How can patients have an accurate record of what they’ve been told — so they can talk to their family members and do their own research? How can they avoid the He Said/MD Said?
What if we just recorded the informed consent process? We all have phones with video capability. What if, once the doctor started to outline the risks and benefits of the various options, we just said: “Hold on a second, I’d like to record this so I can talk to my family about what to do and do my own research later.” Would this make the doctor be more objective and thorough in discussing the risks? Would it prevent the doctor from exaggerating his or her warnings later, after a bad outcome?
There may be a few downsides. Most importantly, some states have two-party consent laws. (Washington’s is here.) So you’ll want to make sure you get consent of the doctor to record on the recording. Something like: “Ok, Doctor, like we just talked about, I’m going to record this so I can talk with my family about what to do. Is that okay?” And of course, it may make the doctor uncomfortable, or the doctor may refuse. But maybe that is valuable information in itself. What does it say about the doctors that they don’t want a real record of what they told you? And finally, you still have to ask the right questions during the consenting process. That’s a topic I’ll discuss in later posts.
What am I missing? Email me at email@example.com if you have thoughts or criticisms, and I’ll post the best ones.