What do I do now?
William Nelson, Paul Hofmann, and Robert L Schwartz comment on another common ethical dilemma
Case: "The first time"
I was a trainee working under the
supervision of Dr M when a situation
arose over informed consent. Mr W had
been admitted four days earlier and was
increasingly concerned about Dr M's
search to find the reason for his
mysterious set of symptoms. Dr M
recommended that an invasive diagnostic
procedure should be performed and she
carefully explained all the reasons to the
patient, including the potentially helpful
information it could produce, as well as
the possible complications. She also
discussed what few alternatives were
available and the relative advantages and
disadvantages of each one. However, she
concluded by noting that these were
unlikely to produce very useful
information.
Having confidence in Dr M's clinical
judgment, Mr W said that he was willing
to have the procedure. At that point, Dr
M mentioned that she would like me to
perform the test. She told Mr W that she
would be present the whole time, and he
gave consent. However, Dr M did not tell
Mr W that this was the first time that I
would be doing this procedure, nor did
he ask about my previous experience.
What does a patient have a right to know
under these circumstances? Is it
appropriate to inform a patient when a
procedure is being performed for the first
time?
The aim of "What do I do now?" is not to
provide answers but to offer readers a
range of reasonable and defensible
options with which to inform their
own thinking and conduct. We invite
readers to submit their own dilemmas
for possible presentation and discussion.
In all cases, scenarios are presented
anonymously to prevent identification of
individuals and institutions involved.
Cases may be submitted direct to the
studentBMJ or to hrc@globetrotter.berkeley. The subject line should read:
"what do I do now?
Tomasine Kushner, University of California, Berkeley,
and David Thomasma, Loyola University Chicago
Stritch School of Medicine, are coeditors of the book,
Ward Ethics, published by Cambridge University Press,
from which some of the cases and commentaries in
this column are drawn.
Commentary
Dr M employed a predictable and common
approach, one consistent with
informed consent procedures in many
hospitals. Unfortunately, although customary
and usual, this typical arrangement
deserves serious reconsideration.
This issue cannot be dismissed as a trivial
matter. A valid consent and refusal
process is one of the cornerstones of clinical
ethics.
The central ethical issue being raised in
this case is whether Dr M provided
adequate information to facilitate Mr W's
ability to give a valid consent for the
procedure. We believe the patient gave
consent but it was not valid.
Conspicuous by its absence was any
reference to the trainee's lack of previous
experience in doing the procedure being
proposed. Withholding such information
is supported by conventional wisdom
because doctors in training must acquire
skills to become adept professionals, and
it is assumed that few patients would
knowingly agree to have a novice "practise"
on them.
Unquestionably, young doctors must
have an opportunity to develop and
refine their skills. Most patients, however,
would be reluctant to allow an inexperienced
doctor to perform his or her first
procedure on them. None the less, some
patients would agree if they were assured
that a senior doctor would be physically
present and would closely monitor the
procedure. What is crucial in the ethical
assessment of this case is whether useful
and important information was omitted
during the informed consent process. We
believe it was.
Despite the presentation of customary
information, under the circumstances, it
was not adequate. Complication rates for
invasive procedures are foreseeably higher
when performed by less than experienced
doctors. The complication rates
given in the literature are based on the
performance of experienced doctors. By
excluding relevant information Dr M
compromised Mr W's ability to make an
informed and valid decision. Doctors
have an implicit obligation to preserve
and enhance this basic moral and legal
concept.
When a doctor conceals relevant
information from a patient, the decision
frequently has long term effects. If an
inexperienced doctor performs the procedure
the fact may become known, particularly
should a complication occur. If
and when Mr W learns that crucial information
was withheld he could become
upset about the specific decision making
process and his overall confidence and
trust in Dr M could be adversely affected.
Mr W may begin to wonder what else she
has not told him.
Hospitals should be committed first to
delivering the best possible care, including
the provision for honest and complete
information about proposed procedures
and treatments. Patients assume
that doctors will be their advocates, and
they do not expect that their needs will be
subordinated to those of inexperienced
doctors. Undoubtedly, some people will
be reluctant to permit a doctor to
perform a procedure for the first time,
but such a decision is the patient's
prerogative.
A hospital and a doctor's values and
perceptions are certainly relevant, but the
patient must retain the right to choose
after all the options have been fully
explained. This moral concept should not
be sacrificed to serve a hospital's teaching
mission.
William Nelson, ethics education coordinator, Dartmouth
Medical School, New Hampshire, USA
Paul Hofmann, vice president, Provenance Health Partners,
Moraga, California, USA
Commentary
Did the doctor in this case breach her
duty to the patient by failing to reveal that
the diagnostic procedure would be performed
by a doctor in training who had
never before performed one?
Speculation about why Dr M did not
provide Mr W with the information about
her trainee's experience suggests that she
wanted the patient to have the procedure
(perhaps because she believed it to be in
his best interest) and she wanted her
trainee to develop experience in doing
this kind of medical work; but she feared
that Mr W would withhold his consent if
she provided this information. That is, she
knew that this information would be relevant
to this patient. Here the doctor's
interest in the therapeutic value of the
treatment is influenced by her independent
and potentially conflicting interest in
her role as medical educator. Where the
doctor has such a potential conflict of
interest, it is especially important that the
patient be given all of the information
that he would deem important in consenting
to a treatment. It would hardly be
surprising under these circumstances for
the patient to feel cheated if he later
found out that such information was withheld.
The fact that this procedure was
being performed at a hospital training
young doctors is not relevant to the
patients' right to have informed consent.
Patients admitted to hospitals do
not understand that they will be the subject
of trial and error by students, and
any general consent to being used as a
teaching prop is probably itself illegal.
In any case, such a consent is not a substitute
for specific consent given for a
particular treatment.
The application of the doctrine of
informed consent to patients need not
be a barrier to teaching and learning or
to good patient care. Instead of figuring
out how much information she
could keep from her patient Dr M
would have better served her patient
and her student by honestly and openly
providing the patient with information
about the trainee's experience. Dr
M could also have told Mr W that she
would be present through the entire
procedure, that she would direct the
medical treatment, and that she would
actively participate with the trainee in
performing the test. She could have
explicitly addressed the question of
whether his inexperience put the
patient at risk, and how she intended to
protect him from that risk.
Patients are likely to be willing to participate
in medical training as long as they
are assured that there is adequate backup
present, and that their own risks are minimal.
Until doctors in training have
enough experience in performing a procedure,
so that most patients would not
consider their inexperience to be a factor
in deciding whether to undergo that procedure,
the patient is entitled to know of
that inexperience and any protection or
supervision that will be provided.
Robert L Schwartz, professor of law, New Mexico, USA
studentBMJ 2001;09:217-260 July ISSN 0966-6494
