Page 18 - 2022 Risk Basics - Surgical Practice

SVMIC Risk Basics: Surgical Practice

The fact that there was no documentation describing a

discussion of specific risks, particularly the risk of ureteral
injury, made it difficult to refute the patient’s claim that he

did not give informed consent for the operation. In addition

to the absence of documentation about specific risks, there
was also a 7-week delay in the dictation of the operative

note.

The operation was performed on April 27, but the operative
note was not dictated until June 19, which generated an

additional concern about the defensibility of the claim. This
late dictation was entered almost two weeks after the

discovery of the ureteral injury, making the note appear to

be self-serving because of the level of detail about the
status of the ureter at the end of the operation. A nearly 2-

month lag between the date of the procedure and the
dictation of the operative note would create difficulties in

convincing a jury to believe that the information was 100

percent accurate, which would also affect the credibility of
the record as a whole.

As a result, the decision was made to settle the case and

avoid creating concern by jurors over these issues.

As was apparent in the above case, often there are issues with
how the consent process was documented, calling consent

into question. Plaintiff attorneys are eager to assert the old
billing adage that, “if it’s not documented, it wasn’t done”.

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