By Steven S. Kron, MD

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Dr. Kron is an anesthesiologist in Hartford, Conn., and a frequent contributor to Anesthesiology News.

As anyone with a computer knows, before downloading a new program, you must indicate agreement with the Terms of Service (TOS), a tedious multipage scroll. By checking a box at the bottom of the page, you acknowledge that you have read and accept the TOS. Those crafted by the really expensive lawyers have two check boxes—the first indicating that you agree with and accept the TOS, the other that you indeed have read the words to which you assent.

Yeah right!

Does anyone without a certifiable DSM-5 [Diagnostic and Statistical Manual] disorder go through the ponderous legalese before checking off the box that says he or she has done so? Furthermore, have there ever been negative consequences to such gross dishonesty? I doubt it.

Which brings us to the written consent form that I’m confident we all obtain before administering anesthesia. Naturally, obtaining consent and obtaining a consent form are different animals entirely. Although few if any anesthesia lawsuits hinge exclusively on the lack of a consent form, the absence of one may hurt a defendant accused of other misbehavior. Should a lawsuit arise for an unrelated cause, those smart, really expensive lawyers certainly will use a poorly written consent to raise doubts about the anesthesiologist’s professionalism or concern for the patient.

The anesthesia consent form has come a long way since my residency. Back then, it simply did not exist. Of course, we discussed anesthesia with patients during the preoperative visit. But because the surgical consent included a line that anesthesia would be administered, a separate written consent for the receipt of anesthesia was deemed unnecessary. The surgeon or anesthesiologist pretty much dictated the type of anesthesia, so the conversation tended to be one-sided.

Entering private practice, I soon learned that patients’ desires mattered. If my plan conflicted with their preconception, I would need to convince them of the benefits of my approach. Yet I did not need their signature. After a decade or so, in response to some outside review, we decided to add a line signed by the anesthesiologist testifying to the fact that he or she discussed anesthesia, possible complications and alternatives with the patient. There was still no requirement for the patient to sign.

The next incarnation added a requirement for the patient’s signature. This was a bit of an adjustment for those of us who were not sure how to discuss complications. Conventional medicolegal wisdom says that you need to mention common but minor and rare but catastrophic ones. So, do you tell them that they may get a little sore throat, a bit of nausea and oh, by the way, you might die (please sign at the X)?

Our most recent consent form is by far the most thorough I have ever seen and has been made the standard for all the members of the mega–hospital conglomerate to which we belong. It is similar to but even more complete than the form on the website of the American Society of Anesthesiologists and covers every possible issue that could arise.

Of the hundreds of patients I have asked to sign this document, none—not a one—has hesitated. Unfortunately, the problem I have consistently encountered is, despite a willingness to sign, their near 100% unwillingness to read that to which they are attesting!

Some of the reluctance is no doubt due to the same lack of interest I have for reading the TOS discussed above: an understanding that these are lawyer-generated documents designed to, as more than one patient has accurately put it, “cover your ass”! My response is to agree, again offer to tell them the risks, and if and when they refuse make a few lawyer jokes and off to sleep. Often, there is the complaint that the document is too long and wordy and written in an illegibly small font.

Perhaps most important, by the time they have gotten to me, they have signed multiple forms—consents, releases of information, HIPAA forms and assignments of benefits and are, like Eliza Doolittle, just so sick of words.

In my dealings with genuinely sick patients having major procedures, I have found that they and their families generally do seem to appreciate the potential hazards of anesthesia and a signature at the bottom of the page is a true acknowledgment of that.

Ironically, it is the healthier and particularly the morbidly obese patients with sleep apnea who are having moderate sedation for minor procedures such as endoscopies who seem less willing to understand risk. Explaining to these folks that propofol is a great drug that will quickly sedate them and allow for a rapid and nausea-free emergence, but may cause apnea or an obstructed airway, can be tricky. It also violates the prime directive: Don’t scare the customer.