The Importance of Informed Consent and Its Role in the Outcome of Surgical Liability Cases

Abstract

Objectives: Previous analyses have noted perceived deficits in informed consent (IC) in many otolaryngology malpractice lawsuits. However, no comprehensive analysis of IC in malpractice litigation across surgical specialties exists. Our objectives were to 1) examine IC in litigation across surgical specialties and 2) characterize factors in determining legal responsibility. Methods: Using the Westlaw Database, 694 jury verdicts and settlement reports since 2010 involving defendants practicing general surgery, neurosurgery, ophthalmology, orthopedic surgery, otolaryngology, plastic surgery, and urology were examined for outcome, awards, procedure types, and alleged IC deficits. Results: Of 694 cases, 67.0% of decisions favored physicians. 25.4% resulted in damages awarded and 7.6% in out-of-court settlements. Although perceived IC deficits did not increase the likelihood of jury awards, a high number of cases (25.1%) identified IC as a factor. Plastic surgery (48.7%), ophthalmology (41.2%), and otolaryngology (33.3%) litigations were among the highest to identify IC deficits. Many cases in plastic surgery and ophthalmology with alleged deficits in IC involved elective procedures. In contrast, otolaryngology had a lower proportion of elective procedures in cases with alleged deficits in IC. Conclusions: Although perceived deficits in IC do not necessarily increase the likelihood of a negative outcome, it may play an important role in the initiation of malpractice litigation across surgical specialties. While otolaryngology had a relatively high rate of litigation involving IC deficits, it had a lower proportion of elective procedures in comparison to other surgical specialties in this analysis, suggesting elective interventions influence legal responsibility in a specialty-specific manner.