Full participation in the informed consent process for refractive surgery is the responsibility of all involved parties––the patient, the optometrist and the surgeon. The legal doctrine of informed consent is one of the primary instruments used by legislatures and courts to evaluate the scope and nature of information that doctors must document and disclose to patients who undergo treatment. A physician’s failure to disclose all the risks associated with treatment can be interpreted as a breach of professional duty and/or a negligent act.
Furthermore, juridical interpretations of your responsibilities
in the informed consent process influence the daily practice of surgeons, as
well as that of other optometrists.
The doctrine of informed consent is evolving, and most
experts suggest that doctors constantly monitor changes in the approach and
elaboration of the process. While this notion sounds ideal, it remains
impractical for most of us. Also, it is not perfectly clear what role a
referring optometrist has in the process. In the era of greater cost
consciousness in health care, the time and objective financial costs of the
process are also relevant.
Having spent the last six years of my professional life
devoted to resolving disputes and conflict resulting from refractive surgery, I
have come to view the informed consent process differently. I don’t pretend to
offer legal advice about the process, but I can offer you some insight into a
dimension that is rarely discussed. And, that dimension is “the middle ground”
associated with reducing the risk for disputes or conflict concerning the
informed consent process that most lawyers, legislators and jury members––but
few optometrists and surgeons––come into contact with on a regular basis.
Ultimately, my hope is that I may offer you insight to better help your
Let me begin to move directly into the middle ground by
making an observation. In my experience, most patients involved in a dispute or
conflict generally argue that they were not adequately informed about the
possibility of unexpected results following a procedure. Likewise, the surgeons
who operated on these patients almost always reply that they definitely
provided informed consent and have the signed and properly-executed document in
the patient’s record to prove it. So, if both contentions are true, how can
there be such a gap between the patient and surgeon?
Simply put, the culture and values of the patient and
surgeon may be quite different. Patients are understandably concerned about
their needs and welfare.
But, surgeons frequently take a more macro-approach to
informed consent, because their documentation often focuses more on the
percentages of a particular problem in a large group of patients. In my
experience, this gap can lead to what appears to be “a cross-cultural interaction.” It’s no wonder that patients and their surgeons may not understand each
other, which often results in dispute and, sometimes, conflict.
Can we somehow begin to bridge this gap? It’s a provocative
question. But, for the sake of our discussion, let’s try a change in narrative
with the patient.
At some point in the informed consent process, you might
consider saying something like this: “The informed consent document can be a
bit daunting, and it might not address all of your concerns as well as you or I
might like. In the end, what matters to me is that you understand what I will
do for you if you have a problem associated with your treatment. I will do what
I can to help you. And, if I cannot help your surgeon, I will trust your care
to someone else whom I think might be better able to help you.”
In my experience, this approach is fundamentally necessary.
It is precisely what the patient needs to hear from both the referring
optometrist and the refractive surgeon. It is my modest effort to try to use
the middle ground to address the micro-concerns of patients as well as the
macro-concerns the surgeon wants his or her patients to understand about a
Also, this approach sets the tone for an important idea in
surgery. A referring optometrist and/or a refractive surgeon may find that a
patient has a problem that someone else might be better able to treat. And, use
of this language lets the patient know that there are limits to what the
optometrist and/or refractive surgeon may be able to do to help him or her get
better. Often, patients expect more from their doctors than they are able to
provide with certainty. So, it is best to set that tone early in the
doctor-patient relationship––not after the patient experiences an unanticipated
However, before embarking on such a strategy, it would be
best for the referring optometrist and the refractive surgeon to have a
discussion about the informed consent process and the language each individual
will use with the patient.
It is surprising how little time and narrative is
invested in this language, but it is very meaningful for the patient and his or
Again, the idea is to be able to express your respect for
the patient, outline what you will do to help him or her get better if there
are problems following surgery, and establish a mutual understanding of what
services you and the surgeon will be able to provide.
Dr. Potter is vice
president for patient services for TLC Vision and a faculty member in dispute
resolution at the Annette Caldwell Simmons School of Education and Human
Development at Southern Methodist University in Dallas.