Explaining The Concept Of Informed Refusal In Medical Malpractice Litigation

The American College of OB-GYNs is one of the medical associations that have recently been active in increasing awareness among providers regarding the concept of informed refusal. No discussion about the potential liability associated with informed refusal would be complete without first prefacing the topic of informed consent. Informed consent-related civil actions are typically negligence claims that occur when a health provider gives insufficient information to a patient in administering their care. Physicians are required to provide formal informed consent through discussion with patients. For example, if a physician makes an assessment of a medical condition that a patient has, they are to explain the nature of the condition, proposed treatment, other available treatment options, and the risks involved. The informed consent process is basically communication with the patient allowing them to make informed decisions regarding their care and should include an explanation of potential consequences of non-treatment.

Informed refusal is a newer doctrine that could be considered the reverse of informed consent, and is much less talked about. This occurs when the patient is informed of all the facts, recommended treatment, options and risks; however, for some reason, they refuse to proceed with the treatment. The law upholds the belief that refusal is a patient’s right. The most critical aspect of informed consent relating to malpractice litigation is that it must be documented. It should be added to the permanent medical record after completion. One common problem involving both informed consent and refusal is when there is a language barrier between the parties. Although doctors will attempt to inform the patient in a simplistic manner, it is recommended that a translator is used whenever possible.

If a patient who refused treatment were to later pursue a negligence suit, the importance of having documentation to support that the patient had made an informed decision to refuse treatment is extremely significant. In the absence of such a record, a plaintiff could knowingly, or based on a lack of recall, allege that they were not properly made aware of the conditions, options, risks, benefits etc. Physicians are tasked with shifting the responsibility for the decision to the patient. Informed refusals should ideally be signed in the presence of a witness for verification purposes. Another scenario with potentially bad consequences is if a patient who had refused treatment abruptly dies as a result of the condition. The grieving family may insist that the deceased would not refuse potentially life-saving treatment options.

Physicians are reminded that if they do not actually engage the patient in the process of informed consent, then the necessary discussion points would not be addressed in order to have a valid informed refusal. Many practicing doctors explain that this concept was either not part of their medical malpractice curriculum in school, or was simply addressed very briefly. Another core requirement involving informed refusal is that the process may not be delegated. This means that the practitioner themselves must make the disclosures to the patient–not another staff member.