Litigation Guides

Informed Consent During Gynecological Surgery

Informed consent is a central tenet of the physician-patient relationship, as well as a critical legal right owed to a patient. The preservation of a patient’s right that they are fully informed of the benefits, risks, and side effects of any medical treatment or procedure is even more significant in the gynecological context, such as when delivering babies or treating diseases, when such information affects not just the patient but also the patient’s unborn or newborn children as well as future fertility.

Medically Reviewed

01

What is Informed Consent?

Informed consent is the process by which a patient is advised of the nature, purpose, and risks of the medical procedure they are undergoing. A signed informed consent is an agreement between the patient and provider that the patient was made aware of, and fully understands, the procedure. Failure to obtain informed consent from a patient can result in a medical malpractice claim.

However, there are exceptions to obtaining informed consent, such as during life-threatening emergencies or when the patient cannot give consent because they are anesthetized or refusing necessary medical interventions.

Doctor speaking with female patient
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Informed Consent in the Gynecological Context

According to the ethics committee guidelines of the American College of Obstetrics and Gynecologists, informed consent should include a discussion of the benefits and risks of available treatment options in the context of the patient’s values and priorities. Informed consent should be patient-centered and tailored to their particular medical needs. The conversation should include “benefits and risks of available treatment options in the context of a patient's values and priorities” and is contingent upon “[giving] the patient adequate, accurate, and understandable information and requires that the patient has the ability to understand and reason through this information and is free to ask questions and to make an intentional and voluntary choice, which may include refusal of care or treatment.”1

Decision-making Capacity

Patients who possess the requisite decision-making capacity maintain the right to refuse treatment, during pregnancy, labor, and delivery, when the treatment is necessary for the health and survival of the patient and/or the patient’s fetus.2 A patient is considered to have decision-making capacity when she has the intellectual ability to understand the consequences of refusing treatment.

According to a 2015 publication in The Obstetrician & Gynaecologist, a patient must be assumed to have capacity unless determined otherwise by a trained professional. All steps must be taken to ensure effective and appropriate communication before assuming the patient does not have decision-making capacity. A patient does not lack capacity simply because they do not make a decision the provider likes. If lacking in capacity, the decisions made for the patient must be in their best interest and with minimum breach of the patient’s rights in order to achieve the desired goal.3

The Royal College of Obstetricians & Gynecologists suggests that obstetrical and gynecological surgical procedures such as an oophorectomy (the surgical removal of an ovary) warrant special care and performing these procedures without obtaining informed consent should be avoided.4 As they explain: “To avoid the possibility of oophorectomy without consent being undertaken, the possible need for oophorectomy should always be discussed with all women undergoing hysterectomy and their preferences recorded. Oophorectomy at the time of hysterectomy for unexpected disease detected at surgery should not normally be performed without previous consent.”4

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Informed Consent Exception

The Royal College of Obstetricians & Gynecologists also notes that informed consent may not always be possible during potentially unforeseen events, including when an oophorectomy is performed. But physicians must explain to patients that “during a procedure, complications may sometimes arise whereby, if no further procedure is performed, the patient’s life or quality of life could be compromised.”4

In certain emergency situations when lifesaving measures must be taken, the safety of the patient may trump informed consent concerns. In some instances, it is not possible to obtain written consent, in which case, verbal consent is acceptable. However, the patient should still be given the information necessary to make a decision.5

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Considerations for Ovary Removal to Address Endometriosis

  • An oophorectomy should be avoided when addressing endometriosis unless the risks of reoperation are outweighed by the surgery’s complications.
  • As premature menopause is a complication of oophorectomies, the risks of reoperation should outweigh this complication when determining whether to remove an ovary.
  • When a hysterectomy is considered a definitive treatment for endometriosis, a conservative surgery that does not remove entire organs (such as removing specific isolated pockets of endometriosis), is the first-line approach in order to preserve fertility.
  • However, the disadvantage of conservative surgery is the high rate of recurrent symptoms when compared with hysterectomy and oophorectomy.
  • The decision to remove a healthy ovary should be made only after the patient is individually counseled as to the risks and benefits.6
  • Most patients with endometriosis are young and wish to preserve fertility, so conservative treatment, although less effective in treating pain, should be considered.7
  • The decision to remove healthy ovaries for a benign disease should only be made following adequate and individualized counseling.
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Notable Informed Consent Lawsuits

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Works Cited

1.

Informed Consent and Shared Decision Making in Obstetrics and Gynecology | ACOG. URL

2.

Is patient consent required in emergency situations? (n.d.). URL

3.

Treharne, A., & Beattie, B. (2015). Consent in clinical practice. The Obstetrician & Gynaecologist, 17(4), 251–255. https://doi.org/10.1111/tog.12219. URL

4.

Obtaining Valid Consent. (2015). www.rcog.org.uk. URL

5.

Treharne, A., & Beattie, B. (2015). Consent in clinical practice. The Obstetrician & Gynaecologist, 17(4), 251–255. https://doi.org/10.1111/tog.12219. URL

6.

Hickey, M., Ambekar, M., & Hammond, I. (2009). Should the ovaries be removed or retained at the time of hysterectomy for benign disease? In Human Reproduction Update (Vol. 16, Issue 2, pp. 131–141). Oxford University Press. URL

7.

Mohr, C., Nezhat, F. R., Nezhat, C. H., Seidman, D. S., & Nezhat, C. R. (2005). Fertility considerations in laparoscopic treatment of infiltrative bowel endometriosis. JSLS : Journal of the Society of Laparoendoscopic Surgeons / Society of Laparoendoscopic Surgeons, 9(1), 16–24. /pmc/articles/PMC3015563/. URL

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