Liability and Informed Consent in the Context of Shared Decision Making

Abstract

The idea of shared decision making (SDM) is gaining traction within emergency medicine, although concerns about potential legal consequences of its use may be slowing its adoption. We describe the similarities and differences between informed consent (IC) requirements and SDM, highlighting their different purposes, scope, and implementation. We also illustrate several areas in which SDM may affect clinicians’ liability risks and suggest that while SDM is likely to reduce net liability risks, it may increase providers’ liability risks in certain situations or with select patients. Overall, engaging in SDM should be understood as clearly distinct from the process of obtaining IC and could reduce clinicians’ risk of liability when applied carefully and thoughtfully.