Malpractice risk assessment among different approaches for informed consent

The standards for obtaining informed consent, set forth by the Hawaii Revised Statutes, establish that it is the physician's duty to disclose what a reasonable person objectively needs to hear in order to make an informed decision. It is the purpose of this study to report the opinions of medical malpractice attorneys to survey their opinion whether full or limited disclosure of alternative treatments in informed consent is viewed as having a lower malpractice risk.

Hawaii medical malpractice attorneys viewed a compilation of arguments for and against both full and limited disclosure, and completed an opinion survey after reading samples of disclosure statements in two different case scenarios: 1) a pediatric emergency department case involving a febrile child at risk for occult bacteremia, and 2) an obstetrics case involving a woman with a postdate pregnancy.

A vast majority of respondents believe that, in general and in the obstetrics case, full disclosure results in less liability. In the pediatrics ED case, 46% chose full disclosure as having less liability, 38% believe that the same liability exists with both full and limited disclosure, and 15% believe that limited disclosure is associated with less liability in this case.

Hawaii attorneys with medical malpractice experience overwhelmingly agree that, in general, full disclosure is associated will less medical legal liability. Full disclosure was also the option selected as associated with less liability by a majority of attorneys in a sample obstetrical case. Opinions were more diverse in the pediatrics ED case. Many attorneys stressed that judging the risk of liability in general is difficult, and should be done on a case by case basis.