Pre- and Postoperative Treatment
Correct preoperative assessment and treatment together with optimal postoperative care contribute crucially to the success or failure of a procedure. The most important aspects are discussed in brief below.
Preoperatively, the patient should be made aware of what to expect postoperatively: how will she be restricted, what pain is likely, what problems can occur? How much will she have to rely on help and assistance? These questions are becoming more and more important in the context of an aging population, particularly with regard to ambulant surgery. The patient should be given adequate information so that she can organize her postoperative affairs. The lenght of her hospitalization depends on the surgery performed, the patient′s health status, her individual domestic care situation, and administrative issues.
Ambulant treatment. The legal foundation for ambulant treatment is based on assessment by a competent specialist. In many hospitals, this assessment is made jointly by the gynecologist and the anesthesiologist. From the anesthesiological perspective, American Society of Anesthesiologists (ASA) class 1 or ASA class 2 is a requirement.
As regards the patient′s social history, it is necessary that the patient can be collected from the clinic by relatives or friends and then be looked after in an acceptable manner for 24 hours. Access to a telephone is a further consideration. The patient or her legal representative should be able to understand the planned operation in its entirety. The minimum criteria that must be met should be documented prior to discharge. These include:
Full possession of protective reflexes
Orientation in time and place
No respiratory impairment
No acute postanesthesia vomiting
Ability to tolerate liquids orally
Recourse claims with regard to the need for in-patient monitoring can usually be rejected when documentation is adequate. Nevertheless, it should be noted that an ambulant procedure is also in the patient′s interest because she is soon removed from the increased risks of infection and thrombosis associated with hospitalization.
In-patient care. The duration of postoperative hospitalization is not uniformly regulated for the purposes of health insurance. There is usually a consensus on the minimum duration of hospitalization, but this does not always match medical need. The surgeon has to find a locally appropriate solution, together with hospital management and the payers. Certainly, postoperative hospitalization has become much shorter in the last 15 years.
In legal terms, every operative procedure constitutes an assault, and many surgical measures actually meet the definition of aggravated assault. This may include, for example, loss of reproductive capacity. Medical treatment, and a surgical operation in particular, is clearly a physical injury according to the legislation in force. It is not culpable and not unlawful only when a competent patient has given informed consent or when there is a “justifiable emergency.” In addition to the definition of assault, the law of tort also defines when the injured party has a right to seek compensation for deliberate or negligent injury. Here, too, illegality is diminished only by a legally valid informed consent.
Informed Consent Requirements
Informed consent plays an important part in the surgeon′s routine work. “Appropriate information” and legally correct consent are central to the physician′s malpractice liability, both economically and legally. The content, time and form, and documentation of legally valid consent must meet certain requirements:
Typical risks of surgery. When deciding for or against the planned operation, the risks typical of the operation must be explained to the patient. Likewise, the possible consequences of not performing the operation must also be explained and documented. The patient must be given the oppportunity to make an informed decision. The law does not specify what risks have to be explained. If an operation is associated with serious risks, these must be listed even if they are unlikely. The less urgent the operation, the stricter are the informed consent requirements. For example, informed consent for cosmetic surgery should include all risks up to and including postoperative embolism and death. In a life-threatening situation, on the other hand, only the basic outlines of the risks need to be explained. It is important that the surgeon is aware of the concept of the “risks of the specific procedure.” This refers to risks that arise from the surgeon′s experience (or inexperience) and from the quality of the clinic′s facilities. The doctor is also obliged to provide information about alternative treatment methods.
Time and form of informed consent. The time and form of the informed consent should be chosen to allow the patient sufficient opportunity to think over her decision and if necessary discuss it with others. Experience has shown that this time is not on the day of the operation, so informed consent for elective surgery has to be obtained the day before surgery at the latest. Naturally, this does not apply in emergencies. In most doctors’ offices, ambulant surgery centers and hospitals, the patient is first given a printed form that explains the operation. The indispensable personal informed consent discussion can be based on this information form. Translators should be well versed in medical terminology. This is often not the case when relatives serve as translators.
Under-age children. In the case of under-age children, the consent of both parents with legal custody is necessary. Although the consent of one parent suffices in ordinary cases, the consent of all adult legal guardians should be obtained in the case of critical procedures with an ethically problematic background. If the parents refuse necessary treatment, an application must be made to the guardianship court. In emergencies, the physician may make the decision.
Impaired consent capacity. The capacity to give consent is a central point that must be heeded. If capacity is impaired by mental disability or disease, a legal representative may be appointed by the court to consent to the operation. This involves appointment of a guardian, a legal carer or representative for health matters. It is particularly important that dangerous or problematic procedures also require the approval of or a ruling by the guardianship court. Extreme caution is required with patients who are incapable of giving informed consent. Legal competencies must be clarified if time allows. In cases of doubt, a statement by an ethics committee, an expert lawyer or the responsible court should be obtained. The term “patient′s presumed will” is used in this context.
Informed consent in obstetrics. Informed consent is particularly important in obstetrics. A rapidly evolving obstetric situation in an individual case does not alter the informed consent obligation. This applies, for example, to cesarean section, operative vaginal delivery, or fetal blood sampling. The woman in labor must be provided with information, and this must be documented.
Intraoperative extension of an operation. Another critical point is intraoperative extension of a procedure. The operation may be extended only within the framework of the consent given by the patient. In clinically difficult situations, such as unclear adnexal findings or uncertain histology, the problem must be discussed in detail with the patient. A two-stage procedure may be advisable.
In addition, every practicing gynecologist should be aware that sterilization of a minor is not permissible, and there are rare exceptions to this rule.