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LEGAL MATTERS


sent requirement when the patient is in a medical emergency or end of life care. The inconvenience of procedure can- cellation is only one reason to know state laws and review processes, but another more important reason for being pre- pared is knowing what to do when the patient has received pre-operative med- ication that can affect mental capabili- ties or is under anesthesia when the physician discovers that another pro- cedure was necessary or beneficial and that procedure is not covered by the patient’s consent, or not clearly covered in the informed consent process. Assum- ing the additional procedure is not an emergency, in which case the physician could proceed under the exceptions to the informed consent process, should the physician seek another person to give consent? Or, should the additional pro- cedure be performed at a later date? If the spouse is not present or cannot be reached but would be able to participate


in an informed consent process for the additional surgery if he or she could be reached, should the physician go down the list of priorities until he finds some- one available who can be reached and give consent? If the additional procedure is not a medical emergency, completing the current procedure and discussing the possibility of additional surgery at a later date with the patient might be a safer course. In most cases, two physicians must document the incapacity of the patient before healthcare decisions may be made for the patient by anyone else. To help prevent last-minute cancel- lations of surgery and decrease the risk of lawsuits based on the consent pro- cess, make a list of circumstances that have presented or may present concern among the physicians and staff about the informed consent process. Review the organization’s policy. Consider reviewing the material on the Agency for Health- care Research and Quality website titled


“AHRQ’s Making Informed Consent an Informed Choice: Training Modules for Health Care Leaders and Professionals.” There are two modules, each 90 minutes long, available at ahrq.gov/professionals/ systems/hospital/informedchoice/index. html that can provide additional thoughts about physician and ASC staff roles in the informed consent process. Review mate- rial available from the facility’s and physi- cians’ medical malpractice insurers on the insurers’ website or through conferences. Finally, have a meeting with medical staff leadership and an attorney knowledge- able in healthcare law to review the facil- ity’s processes and make suggestions to improve.


Nesko Radovic is an associate with McGuireWoods LLP in Chicago, Illinois, and Sandra Jones, CASC, is the president and chief executive officer of Ambulatory Strategies Inc. in Dade City, Florida. Write Radovic at nradovic@mcguirewoods.com and Jones at sjones@aboutascs.com.


16 ASC FOCUS NOVEMBER/DECEMBER 2019| ascfocus.org


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