Informed Consent Problem

Memo

To: Junior associate at a health care compliance consulting firm

From: Senior partner

Our client is a recently formed an OB/GYN practice based here in Tampa, Florida. The practice was formed by three physicians who each hold an ownership stake in the practice. The physician-owners are having a difficult time obtaining affordable group practice malpractice insurance. Their insurance broker has suggested that they develop internal policies to manage liability risks as a means to obtaining discounts offered by many malpractice insurance companies. With this in mind, the physician-owners of the new group practice have asked our firm to advise them about best practices with respect to obtaining informed consent from patients. The three physicians have each been practicing in other settings up to this point, and each has developed her own individual approach to informed consent.

The first physician, Dr. Luisa Sierra, has been practicing as a solo practitioner for about 30 years. She'd like to share overhead costs and the burdens of being on-call around the clock with other physicians and gain leverage with payers so she can negotiate better terms of participation in networks.

The second physician, Dr. Caroline LaRosa, has been practicing for about 10 years as a staff physician in a large group practice in Tampa where she was one of the more junior physicians and was never given an ownership stake in the practice.

The third physician, Dr. Emily McFarlane, recently completed her residency training in a university hospital system in Iowa but has family ties to Tampa.

The practice also plans to employ six nurse practitioners (NPs) with OB/GYN experience and nine additional registered nurses (RNs) to support patient care. The nurse practitioners will handle the majority of well-woman care and prenatal care. The three physicians will handle the majority of deliveries and all surgical procedures. RNs will support both groups.

I have been an advisor to Dr. Sierra for over a decade, but I am currently swamped with other components of the agreement to form the practice. I need you to take the lead on answering the clients' questions and offering your advice about how they should manage their exposure to informed consent liability. You will be meeting with the three physician-owners tomorrow to discuss development and implementation of an informed consent policy.

In my experience, informed consent tort liability in the OB/GYN context is most likely to arise from prenatal diagnostic procedures to assess the fetus for genetic abnormalities. Decisions about whether to schedule a non-medically-necessary C-section, decisions about family planning options, and decisions about whether to surgically remove the ovaries of women who test positive for a gene associated with increased risk of ovarian cancer can also create exposure to liability.

Let's meet at 4 p.m. today to prepare for your meeting with the clients.

Please state your goals for the meeting with the physician-owners and how you plan to achieve them. I'd also like you to identify any additional background research that you need to do before meeting with the clients.