Elective surgery and "informed consent"

A contradiction in terms one would say, right? As lawyers we look at a lack of informed consent as a basis for negligence. In cases where the patient approaches the medical practitioner for an elective procedure this becomes obscured. Informed consent essentially in laymen's terms is an agreement between a doctor and a patient as what harm would be allowed and will be acceptable. Should a doctor neglect to inform the patient of all the harm that may befall them then the patient may feel that they lacked informed consent. This in itself is an anomaly as the human body is too dynamic to predict all the dangers but that's a topic for another time.

 

Why is it then that in an elective procedure, and I have a natural vaginal delivery in mind here, are the patient not informed of the harm that may befall  them in their choice of delivery? Statistically the dangers involved in both procedures are equal, not similar but equal. Having been through both an elective natural birth and an elective C-section, it astounds me that I was not informed of the dangers involved in particularly the natural birth such as episiotomies, fentonplasty, cystocoele, rectoceles,  anal sphincter repairs, fistulas and many many more side effects that may be experienced by a woman during a "natural" vaginal delivery. Have any of you ever been told that? Did your partner know, where you informed of the risks of a C-section versus a vaginal delivery and told to think about it and decide which is best for you? I bet you weren't.

 

So now my question is if you undergo an elective procedure, can we argue that there is an ethical obligation on the doctor to inform you, irrespective of it being your choice, of the dangers you, and your child, may face? (I still have to encounter a matter in which the health of a child was compromised during a C-section). In my opinion the answer has to be yes. If you approach a financial advisor, a lawyer or any other professional for advice, they will discourage you from going in a direction which may loose you money or cost you a court battle, as such I would argue that you should request a detailed Q & A session with your doctor before any surgery.

 

Would that prevent things from going wrong? No, but at least you will be prepared.

Genetic Testing - A moral dilemma or an insurance nightmare?

Norton Rose Fulbright - Medical Law Seminar - 2013

I attended the above seminar this week and found the talk by Sandra Sithole (a director at Norton Rose Fulbright) food for thought.

The issue we are faced with is the possibility that should we undergo genetic testing for our own peace of mind then do we also have a responsibility to inform our insurer that we are at a greater risk for one or another medical ailment?

The issue of non-disclosure clearly becomes problematic especially in light of life insurance policies and income continuation benefits as it could be said that the client is no longer bona fide (as was the scenario with non disclosure in income tax returns) and clients could insure for what will now possibly become a bigger reality.

The question is, should one be entitled to keep this information to oneself in terms of Privacy Laws or can the insurance industry argue that this will be to the detriment of the healthy members? And as many such conditions are hereditary would the impact not spread far and wide for generations to come?

Maybe this would be a hurdle that we can overcome like we did for the HIV/Aids pandemic. If clients are forced by their insurer (and paid for by them) to undergo genetic testing, can one then not argue that you would be in a much better position to plan your insurance cover and in many instances a good case can then be made out for any elective surgery that a client may want to undergo to minimize the impact of genetics (as was recently seen with the much publicized Angelina Jolie surgery)

I see this as an opportunity for insurance companies to assist individuals to make their lives healthier and to provide a platform for argument that elective surgery which is still considered cosmetic, should be allowed into the fold of covered expenses.

Some basic form of genetic profiling is already allowed by taking a family history from a client as it relates to heart disease etc. Why can both client and insurer not benefit from such phenomenal strides in the medical fraternity?

The exclusion of elective surgery as it relates to corrective eye surgery by insurers has always baffled me. Why pay on a continued basis for glasses and contact lenses when your client can have corrective eye surgery and save in the long run? Many more examples of this wide interpretation of "cosmetic surgery" can be given.

A further possibility could be a reduction in the premiums of healthy individuals as they would no longer be judged statistically but rather on actual chances. The opportunity for a contingency reduction (or increase) may change the scales of balance where 99% percent of the healthy insured pay for 1% of the less healthy.

Would this make insurance unaffordable for the sickly or genetically predisposed? Yes maybe, but it could also save their lives and open the doors for prevention.

Prevention is still better than cure.