The Elder Law Forum

The Elder Law Forum by Professor Michael Myers Editor's Note: The Elder Law Forum is a public service of The University of South Dakota School of Law, an extension of the SENIOR LEGAL HOTLINE available at no cost to persons 60 and older at 605-677-6343 and mmyers@usd.edu during regular business hours. The Elder Law Forum delivers information and educational material by radio, a weekly newspaper column, and Law School research papers placed on the USD School of Law Web site. Professor Myers teaches Elder Law at the School of Law.

Informed consent and "Pumpheads"

Contemplate the following: You (or a loved one) are lying in a hospital bed preparing to undergo heart bypass surgery. It is 4:30 p.m. Surgery is scheduled for 7:30 a.m. the following morning.

A nurse places before you a form titled "Special Surgical Consent Form," and, smiling, asks you to sign it. Being agreeable, you do. After all, if you did not want the surgery why else would you be there, flat on your back, immodestly attired, vulnerable and trusting? From a legal perspective, and more importantly from a personal perspective, what have you done?

You have attested to the fact that your physician has fully explained the need for the surgery, its expected benefits, and importantly, its known risks. You have agreed to assume all risks associated with the surgery, including serious and permanent injury, and, yes, even death.

You have agreed that medicine is not an exact science and there are no assurances from either the hospital or the physician of a good outcome.

Now, further assume a recent issue of the New York Times has been left on your bedside cabinet. A headline states, "Heart Pump and Brain Injury: A Riddle Deepens With Time." You read: "Each year 300,000 Americans have bypass surgery to improve blood flow to their hearts. Most of the operations succeed. But a minority of patients leave the hospital confused or forgetful, unable to think clearly or unable to concentrate.

" 'Pumpheads,' some doctors privately call those patients, and the information shows that a third or more may be affected. As the term implies, doctors attribute the problems to the pump, the heart-lung machine that takes over during surgery when doctors literally stop a heart from beating so that they can repair its blocked vessels."

The Times notes that a way to avoid the problem is to undergo an off-pump operation, during which surgeons operate on a slippery blood-coated beating heart. It then casts doubt on the off-pump procedure. "But now," says the Times, "some of the most fervent believers in the so called off-pump operations are turning from it, saying the information does not back up the theory."

Finally, the article says the off-pump technique has not undergone clinical trials. So there you are, heart patient, confronting the risk of becoming a "pumphead," or perhaps pursuing an unproven off-pump operation.

"Nurse, can I look at that consent form again, please? And by the way, do you have a treatise on the doctrine of informed consent?"

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