Ethical Challenges in the Operating Room

Surgical informed consent is a big responsibility, yet its conduct is often delegated to individuals who do not have the experience and knowledge of the primary attending surgeon. This is not a condemnation of the process, particularly in academic medical centers where junior resident physicians are often tasked with this responsibility. Rather, we must provide adequate oversight and education so that the individual who informs the patient will be prepared to present and discuss the goals, potential risks, and potential benefits in a way that allows the patient to make a determination based on accurate information. Moreover, this discussion does not obviate the primary attending surgeon’s responsibility to perform a comprehensive explanation of the surgical procedure in all aspects as part of her/his evaluation and recommendations to the patient for consideration.

Timing

Another common occurrence that bears some ethical consideration is the practice of having the patient sign the surgical informed consent document on the morning of surgery in the preoperative area. The document’s validity is based on the premise that the primary attending surgeon has adequately discussed the procedure with the patient, explained the risks and benefits as well as the alternatives to surgery, and answered the patient’s questions. We believe that this practice is consistently performed well across the country, but there are no solid data to confirm this premise.

While it can be reasonably construed that a patient who shows up for a surgical procedure has given “assent” to the surgery, signing the consent on the morning of surgery usually does not allow for further discussion of concerns and questions that the patient might have developed since the last visit with the otolaryngologist. And, we must realize that the patient has likely not slept well the night before, may have awakened much earlier than usual, is probably hungry and thirsty, and is very nervous about what is to occur. All of this can potentially affect the integrity of the informed consent process.

Additionally, we can likely agree that the document of “informed consent” signed by the patient is just a document and does not necessarily reflect the patient’s understanding of the nuances of the information. The informed consent process is just that—a process—in which the emphasis is placed on the discussion between patient and surgeon, and during which it is determined that the patient understands the information, has had ample opportunity to ask questions, and has had these questions answered fully by the informing surgeon. The document is not as important as the discussion and process of understanding.

Overlapping Procedures

The second issue of concern presented by the medical center leadership for your input is the development of guidelines and standards for the disclosure of potential overlapping or sequenced surgical procedures to the patient, and the oversight of proper conduct for such occurrences. The foundational concepts (professional and ethical) for any surgical procedures involving trainees as assistants are two-fold:

1. The physical presence of the primary attending surgeon in the operating room during the critical or key portions of a surgical procedure; and
2. The delegation of the non-critical portions of a procedure to a trainee (usually a resident physician) who is capable of performing these portions safely and appropriately when the primary attending surgeon is not physically present in the operating room.

At this time, in the absence of specialty-derived statements, the decision regarding what constitutes the critical or key portions of a given procedure is left up to the primary attending surgeon.