ASOURCE Times

What is important in court
Whether prior explanation changed treatment choice

Last time, we explained two reasons why doctors are reluctant to explain serious complications: 1) if they emphasize serious complications, patients may become afraid of treatment, which could result in them missing out on valuable treatment opportunities, and 2) they or their facilities have never experienced the complication that is causing problems with the treatment in question. The latter reason can be replaced by the fact that it occurs rarely.

Regarding frequency, if invasive medical procedures cannot be performed without first explaining everything, including unlikely events, and obtaining consent, medical treatment is not valid. In the first place, the claim that there was no explanation is like a game of rock-paper-scissors after the results have occurred, and is a so-called "what if" argument, so it is not something that can be tolerated without limit.

Because courts only make decisions on a case-by-case basis, they do not provide clear, uniform standards that state that as long as the explanation is given, there will be no problem. The most important thing to consider in each case is whether the patient's decision on whether or not to receive treatment would have been different if they had received the explanation beforehand. Therefore, the important question is what would have happened if the treatment had not been implemented.
　
For example, when treating a myocardial infarction, where every minute counts, it would be unreasonable to explain every detail until it is too late. In the first place, the option of not receiving treatment is not an option unless there are extremely special circumstances. Therefore, even if the patient is informed of the risks, it can be said that this does not affect the decision to accept or reject the treatment. Furthermore, even if the explanation is somewhat insufficient, it is unlikely that a court will find that there was a breach of the duty to explain.

On the other hand, in cases such as unruptured cerebral aneurysms, where there may be certain risks but immediate treatment is not life-threatening, sufficient information is required to allow the patient to choose a treatment method, including the risks of treatment, the risks of not undergoing treatment (the option of observation), and alternative treatments. For example, in a past court case, the risks of a planned craniotomy were pointed out in a conference immediately before the surgery, and the procedure was changed to coil embolization. However, during the procedure, the aneurysm ruptured, causing massive intracranial bleeding and widespread cerebral infarction, resulting in death several months later. In this case, the court ruled that the patient should have been given an opportunity to carefully consider the need for further treatment, taking into account the changes in the preoperative evaluation. When it comes to aesthetic treatments such as dental implants and cosmetic surgery, more detailed explanations of the risks and drawbacks tend to be required.

If medical professionals are in the patient's position,
When asked for an explanation, he replied

More than 10 years ago, I conducted a questionnaire survey of medical professionals regarding surgical explanations. The survey asked about general explanation items such as risks and complications, and asked about what they would want to be explained if they were a patient, and what they considered important from the perspective of the explainer. The results showed a significant difference in the question of "risks of not performing the procedure (the option of observation)." An interesting result was that many people said they would want to hear about this if they were a patient, but that it was not important for explainers. This is a crucial factor in deciding whether to perform a procedure now or not, and yet it is a very contradictory result in which people want to hear about it themselves, yet do not place importance on it when explaining to others. This is especially true if serious complications, such as those mentioned at the beginning, are predicted.
　
This is just my own speculation as to why, but there are no significant differences in items such as surgical risk and complications, and it doesn't seem like there's any intention to hide anything inconvenient. As medical professionals, we may have a subconscious awareness that, since patients are coming to the hospital, they actively desire treatment. Although this isn't an example that can be discussed on the same level, perhaps it's the same as when you visit a restaurant and don't ask customers if they'll be eating, but only what they'd like to order. Moreover, even though our restaurant is a Western restaurant and there's a Japanese restaurant next door, it's not normal to ask about alternatives, such as "Would Western food be okay?"

Consideration was given to the individual circumstances of patients
Information is required

In recent years, the approval requirements for designated treatment hospitals and third-party evaluations of hospital functions have required the development of explanatory documents and the enhancement of the explanation process. Informed consent is evolving to include objective evaluations and explanations that contribute to patient decision-making, rather than simply considering the perspectives and opinions of medical professionals. In other words, the standards required are rising not only in court but also in everyday medical practice. Providing information that takes into account the individual circumstances of patients is expected to reduce disputes over the obligation to provide information in court. On the other hand, if hospitals miss this trend, they may end up appearing inferior to others in the event of an accident, which could lead to them being held responsible. It is important to keep up with the latest trends.