The VA healthcare system is the largest healthcare provider in the U.S. As of late, even for a huge system, there have been a disturbing number of surgical providers who have routinely harmed patients by committing serial mistakes and standard of care breaches. In certain of these cases, the VA took years to remove the physicians, during which time patients suffered repeated injuries due to shoddy and substandard surgical practices. In most of these cases, the offending surgeons violated the VA’s requirements of informed consent, a protective measure that is oftentimes overlooked when a Veteran seeks service connection for a medical error committed by a VA practitioner.
The VA’s informed consent statute (38 C.F.R. § 17.32(c)) mandates:
“The practitioner, who has primary responsibility for the patient or who will perform the particular procedure or provide the treatment, must explain in language understandable to the patient or surrogate the nature of a proposed procedure or treatment; the expected benefits; reasonably foreseeable associated risks, complications or side effects; reasonable and available alternatives; and anticipated results if nothing is done. The patient or surrogate must be given the opportunity to ask questions, to indicate comprehension of the information provided, and to grant permission freely without coercion…”
The language above is dense and somewhat hard to understand. However, the following acts generally violate informed consent. First, someone other than your surgeon attempting to disclose the risks and benfits of the procedure to you. The statute mandates that your particular medical provider must have that discussion with you. Next, if you are on a gurney about to go into the operating room at the time of the informed consent disclosures, that is also considered a violation of the informed consent statute. Obviously, if a surgery is performed on an emergency basis, the rules are different. Finally, risks and benefits should be discussed prior to the day of the procedure. While there is no hard-and-fast rule on this point, how else can a lay person truly consider and understand risks of a complicated medical procedure unless they have days or weeks to think about it, ask questions, and potentially research different opinions/options?