There are several definitions of the term informed consent given by different scholars. This paper defines informed consent as a legal process or procedure that involves informing the patient or client about the nature of treatment and risks that may occur as well as possible alternatives in treatment that a “patient, client, and research participants are aware of all the potential risks and costs involved in a treatment” (Thornton, 2000).
Therefore, informed consent process means getting authority and permission from the patient before the physician conducts health care procedures on the patient. Also, the person only gives informed consent after clear understanding of the various procedures, implications, and any possible future risks that may occur in the treatment process. Again, in cases where the patient lacks clear understanding and reasoning power or is incapacitated, he or she should be represented by a close family relative or a guardian who has clear understanding of the condition the patient is suffering from. Besides, informed consent also usually involves a discussion with the patient to ensure that he or she understands everything as well as providing a written note to prove the consent.
Medical intervention sometimes requires use of force; hence, a good communication between the patient and the physician is necessary. Moreover, it involves disclosure of patient’s personal treatment procedures and facts, such as the level and the location of care to be administered to the patient. Therefore, this process requires a lot of application of ethical principles, such as patient confidentiality, right to personal privacy and various restrictive procedures and policies, to provide better protection of the patient and public health including their health information and other health data records (Informed Consent in Louisiana – Lugenbuhl v. Dowling, 1997).
Elements of the legal citation
The case Lugenbuhl v. Dowling involved Dr. Dowling as a general surgeon who was the defendant and the patient (plaintiff) known as Lugenbuhl. The patient faced some hernia problems after “having undergone three unsuccessful inguinal hernia repairs by another surgeon between 1963 and 1974 before the surgeon performed a successful procedure” (Informed Consent in Louisiana – Lugenbuhl v. Dowling, 1997). From the case, it is clear that the patient had allowed and authorized the doctor to use surgical mesh in the operation, although the doctor failed to use it due to his intraoperative assessment of the plaintiff’s condition (Informed Consent in Louisiana – Lugenbuhl v. Dowling, 1997).
The meaning and importance of the doctrine of informed consent
The case of Louisiana-Lugenbuhl v. Dowling was about the action of “a patient against his physician for damages allegedly caused by the doctor’s failure to use surgical mesh, as requested by the patient, in repairing an incisional hernia” (Informed Consent in Louisiana – Lugenbuhl v. Dowling, 1997). The main issue that led to filing of the case in court was to determine if the doctor was informed to use surgical mesh in the patient surgery procedure, as well as to know whether the doctor properly informed the patient about the nature of the procedures that were to be involved in the treatment.
The issue of the doctor informing the patient about the possible risks and providing proper advice about the consequences of using the mesh was also to be determined in the case. Besides, the case had to find out whether the plaintiff was allowed to write an informed consent or the doctor failed to do so, and if so, why he failed to do so. Finally, possible damages caused to the patient by the doctor were to be identified. From the case, the ruling was in favor of Dr. Dowling, as the court found out that he had never “violated any standard of care in any of his treatment” (Meyers, Frieden, Bherwani & Henning, 2008). Indeed, the court ruled that the damages on the patient might have resulted from previous treatments (Meyers, Frieden, Bherwani & Henning, 2008).
Why we have this doctrine and what would happen if we did not
According to Louisiana’s Informed Consent Law, there is need for disclosure of the nature of the treatment procedure involving medical and surgical procedures including provisions of risks that are likely to occur. These include death, loss of important organs in the body, brain damage, paraplegia, and damages to the skin that may cause disfiguration of scars on the patient’s body. A written consent is normally taken to be valid and effective, as it eliminates any misinformation and misrepresentation of facts regarding patient’s treatment procedures, thus allowing the latter to make the right decisions. Therefore, according to this legal law, a doctor has the responsibility to inform and disclose all the possible risks, such as degree of harm, before the patient signs the consent form (Thornton, 2000).
Elements that must be present for informed consent to exist under the law
Two important elements must be present for informed consent to exist. Firstly, there must be a clear definition showing the existence of the risk as well as its nature and possibility of occurrence. This clear definition of risks usually involves a physician who is an expert in medical risks to give an appropriate risk judgment. Secondly, materiality test is used to determine “whether the probability of that type harm is a risk which a reasonable patient would consider in deciding on treatment” (Meyers, Frieden, Bherwani, and Henning, 2008). This is done to prove if it would have been possible for the doctor to use the method of treatment in the process of treatment and if the benefits obtained outweigh the damage caused to the patient (Meyers, Frieden, Bherwani, and Henning, 2008).
Basis for negligence
In a legal case of negligence and liability, the negligence may be breach of duty by the doctor involving failure to disclose material information to the plaintiff. Also, negligence may be determined if there was a causal relationship seen between the doctor’s failure and the various damages that have been claimed by the patient. If this is clear, then the damage may be taken to have emanated from the doctor’s breach of duty (Informed consent, n.d).
Elements that must be present for a patient to give informed consent
Two main elements must be present for the patient to give informed consent. To begin with, the patient must be having reasonable understanding and proof that if the doctor used the correct procedure in the treatment procedure, the damages caused may have not been there. Secondly, the patient must also clearly indicate enough evidences showing that the doctor used a procedure after providing him or her with enough information about the procedure.
Also, the patient must prove that if he were given enough information, the procedure would not have been used. Therefore, the patient can only make informed consent after proving that the doctor supplied him or her with enough evidence and information about the procedure to use. Again, the patient can only make informed consent if he or she has reasonable understanding of the procedure and can make proper informed decisions (Bal & Brenner, 2009).
All in all, informed consent is important in healthcare provision, especially if surgical procedures are involved. Generally, the patient should be furnished with sufficient information about his or her condition as well as the procedure to be undertaken and then allowed to make informed decision about whether to consent to the procedure or not. Indeed, the case of Lugenbuhl v. Dowling should provide a platform for informed decisions by both the physician and the patient.
A Practical Guide to Informed Consent. (2007). A Practical Guide to Informed Consent. Web.
Bal, S.B., & Brenner, H. (2009). Rethinking informed consent: Tell your patients of all the treatment choices available to them. Orthopedics Today. Web.
Informed consent. (n.d). Informed consent: Not just a piece of paper. Web.
Informed Consent in Louisiana – Lugenbuhl v. Dowling. (1997). Informed Consent in Louisiana – Lugenbuhl v. Dowling, 701 So.2d 447 (La. 1997), rehearing denied (Nov 21, 1997). Web.
Meyers, J., Frieden, Y., Bherwani, K., & Henning, K. (2008). Ethics in Public Health Research: Privacy and Public Health at Risk: Public Health Confidentiality in the Digital Age. Am J Public health, 98(5), 793-801. Web.
Thornton, R. G. (2000). Informed consent. Proc (Bayl Univ Med Cent), 13(2), 187–190. Web.
This critical writing on Informed Consent in the Lugenbuhl v. Dowling Case