Learning from informed consent litigation to improve practices: A systematic review. Issue 7 (July 2022)

• Record Type: Journal Article
• Authors: Giudici-Wach, Karine; Gillois, Pierre; Remen, Thomas; Claudot, Frédérique
• Is Part Of: Patient education and counseling. Volume 105:Issue 7(2022)
• Page Start: 1714
• Page End: 1721
• Publication Date: 2022-07
• Subjects: Informed consent -- Patient's right -- Litigation -- Malpractice claims -- Quality of care; Patient education -- Periodicals; Health counseling -- Periodicals; Health education -- Periodicals; Counseling -- Periodicals; Patient Education -- Periodicals; Éducation des patients -- Périodiques; Counseling -- Périodiques; Éducation sanitaire -- Périodiques; 615.5071
• DOI: 10.1016/j.pec.2021.10.009
• Languages: English
• ISSNs: 0738-3991

Abstract

Abstract: Objective: To describe the reasons that lead judges to qualify malpractice as a lack of information, then rule in favour or not of the health professional (HP). Methods: We conducted a systematic review of case law relating to the breach of disclosure obligations over a ten-year period from 2010 to 2020. We used 3 legal databases: Légifrance, Dalloz and Lexis 360, all identified as the most exhaustive. Results: Of the 514 law cases included: judges found malpractice owing to lack of information in 377 (73.3%) cases. Among the latter, malpractices were lack of risk information (N = 257, 68.2%), lack of proof of information (N = 243, 64.5%) and/or lack of information on therapeutic alternatives (N = 49, 13.0%). These malpractices resulted in a conviction of the HP in 268 (71.1%) of the cases. Conclusion: Case law is an important source of information for improving the quality of HP, lawyers, and judges' practices. Practice implications: This review suggests that: HP should take time to complete the medical record and should learn to communicate about risks with patients, Judges should explain what the 'right way' to inform the patient under the law is, Lawyers could use the inventory made to build their arguments. HIghlights: The most frequent FPPIs are partial or missing information on risks and the impossibility for the HP to prove that he/she has properly informed the patient. Case law is an interesting source of information to characterize inappropriate behavior with regard to patient rights. This study determined: (i) the areas that require improvement in professional practices (ii) the measures to prevent the risk of litigation, (iii) the measures to improve the quality of care.