Informed Consent Issues in Mohs Surgery

Allegations of inadequate informed consent represent one of the top four drivers of malpractice suits for Mohs surgery patients. So what can you do to avoid informed consent lawsuits?

Surgical tools on a table

Mohs surgery uses microscopic mapping to remove skin cancers such as basal and squamous cell carcinomas. In one visit, practitioners surgically remove layers of tissue, analyze each layer to spot cancerous cells, and reconstruct the surgical site. 

The procedure is performed by dermatologists, often at a surgical center or medical office, though large areas of cancer may require hospital admission. The procedure and post-procedure care may also involve a pathologist who examines the lab specimens taken from the surgical site and, in some cases, a surgeon who closes or reconstructs the wound site. 

Mohs surgery has a cure rate of up to 99 percent for new skin cancers and 94 percent for recurring cancers. Thus, the outcomes satisfy most patients. However, like all physicians, those who perform Mohs surgery assume the risk of patient lawsuits.

Mohs Surgery Lawsuits: The Role of Informed Consent

Studies have shown that issues of informed consent represent one of the top four drivers of malpractice suits for Mohs surgery patients.  Generally speaking, “adequate” informed consent requires healthcare providers to address topics such as the nature of the proposed treatment, possible risks and benefits of treatment, alternatives, and the risks and benefits of refusing treatment. 

When courts evaluate informed consent, they ask what information a reasonable clinician would provide to the patient under the same or similar circumstances. Expert witnesses help establish what is “reasonable” in a particular field through testimony about common and accepted practices. Thus, both industry norms and the specific circumstances of each case come into play.

Potential Informed Consent Issues for Mohs Surgery

A robust informed consent conversation can avert misunderstandings and reduce the risk of a lawsuit stemming from a patient’s disappointment or dissatisfaction. Before performing the surgery, physicians should discuss and document the facts, implications, future consequences, and alternative treatments in a way that patients can understand. Simply listing the side effects and risks of the surgery may fall short. Without more in-depth descriptions or definitions, patients may not grasp what to look for after surgery and what might indicate an adverse outcome. 

Similarly, patients may need help understanding what constitutes a successful surgery, what lifestyle changes to expect, or how much ongoing wound care they will require. For example, because Mohs surgery tracks the “roots” of skin cancer, it’s hard to pinpoint the entire surgical site beforehand. Larger surgical sites require more effort to reconstruct,  involve a longer recovery time, and may result in more visible scarring.

Mohs surgery has an extremely high success rate. Even so, it is essential to inform patients about the risk of recurrence and the possible need for further treatment. Patients who don’t understand that Mohs surgery does not guarantee a permanent cure may be more likely to file a lawsuit if any cancer remains or returns later.

See our related articles “Informed Consent and Patient Understanding” and “Informed Consent Liability & Lawsuits: 3 Ways to Get Sued.”

How to Shield Yourself from Informed Consent Lawsuits

Ensure that your informed consent release includes a thorough description of the risks of the surgery and recovery. Find an experienced healthcare attorney who can tailor the forms to your particular practice and the kind of care you provide.

Forms alone won’t suffice, however. True informed consent requires a conversation, not just a signature on a document. Draft a script or checklist of items that all providers in your practice should address when speaking with a patient about Mohs surgery. Augment that checklist with anticipated questions and easy-to-understand answers for patients who are anxious about a cancer diagnosis and unfamiliar with the procedure.

Meanwhile, If you are a dermatologist who doesn’t perform Mohs surgery but refers patients to Mohs surgeons, you, too, should protect yourself from informed consent lawsuits. Patients may sue you if they feel you did not make a diagnosis soon enough or didn’t thoroughly explain the risks and benefits of seeing a Mohs surgeon so that they could make an informed decision.

Jackson LLP’s experienced healthcare attorneys often educate practices about appropriate informed consent procedures. These procedures might include staff training, practice policies, and new informed consent forms customized to your particular situation. If you operate in the states where we have licensed attorneys, book a free consultation to learn if our informed consent services fit your needs.

This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader and should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.

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