DISCLOSURE RECALL

Lack of informed consent is a common strategy of medical malpractice litigation, frequently ancillary, occasionally stand-alone. Plaintiff counsel should be aware of the clinical research studies on patients’ ability to remember what they have been told about the complications and side-effects of a recommended therapeutic intervention.

Much of the literature is specific to clearly defined surgical procedures, but certain patterns emerge. US neurosurgeons asking the questions, "Informed consent: is it a myth?"¹ showed a significant drop (from 44% to 38% retention) on written testing from immediately after consent to six weeks after spinal surgery.

Practice Point

At best, around 50% of patients will recall any one complication which was disclosed

In a recent paper² by Canadian otolaryngologists, overall recall at between a week and two months was 48%, somewhat better for the younger and more educated patients, worse for the less educated and the elderly. There was no gender difference, even for cosmetic risks.

Japanese investigators found³, between 5 months and 6 years (average 28 months) later, a significant difference for recall of possible complications of elective and emergency surgery. Over half the joint replacement patients remembered major complications, compared with less than a third of those who had undergone open reduction of fracture.

A UK study⁴ of patients undergoing prostatectomy examined the relationship between recall and attitude. Although they documented a wide range of attitudes from very trusting ("I don’t mind what happens to me so long as I get better") to suspicious ("consent forms exist for the benefit of doctors), there was no impact on memory for disclosed complications.

Practice Point

Factors for additional decrements of recall:

less educated
elderly
cursory reading
time since disclosure
emergency treatment

20 years ago, researchers correlated⁵ the poorest recollection with cursory reading of the consent form by 40% of chemotherapy patients.

More recently, candidates for Total Hip Replacement surgery were tutored preoperatively until they could answer all the questions about benefits and complications. At best, six months later, a quarter could identify any single potential risk, such as infection, and recall rates for most of the complications were much lower⁶.