• Buckley: Sleep deprivation, your doctor and your legal rights

  • One of the great legal scholars of the last 100 years, Tom Lambert, once wrote:  “A fence at the top of a cliff is better than an ambulance in the valley.” 

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  • One of the great legal scholars of the last 100 years, Tom Lambert, once wrote: “A fence at the top of a cliff is better than an ambulance in the valley.” Ben Franklin said it as well 200 years earlier when he said that an ounce of prevention is worth a pound of cure. Some people think there are too many medical malpractice lawsuits, but the best way to prevent malpractice lawsuits is still to have less malpractice.
    In the most recent issue of the New England Journal of Medicine, perhaps the most prestigious medical journal in America, an article appeared entitled “Sleep Deprivation, Elective Surgical Procedures and Informed Consent.” The authors advocate a pound of prevention, or a fence at the top of the cliff. The statement is made in that article that “sleep deprivation adversely affects clinical performance and impairs psychomotor performance as severely as alcohol intoxication.” If you wouldn’t want your surgeon to come to the operating room intoxicated, likewise you wouldn’t want one who is not well rested and is in fact, sleep deprived.
    One of the authors of this article is a former president of the Sleep Research Society, and is an expert on sleep research. Not to minimize his research and study, it does not take a doctor tell you that if a surgeon is sleep deprived, he won’t do his best work.
    The authors of this article advocate that the patient should be informed before elective surgery is performed if the physician is sleep deprived. As a first step, the authors recommend that hospitals implement policies to minimize the likelihood of sleep deprivation before a clinician performs elective surgery, including facilitating priority rescheduling when a doctor is sleep-deprived. The authors also advocate empowering the patients to inquire about the amount of sleep the doctor has had before performing elective surgery.
    Isn’t it reasonable to expect that any physician will inform the patient of any condition that might impair the physician during surgery? If the patient is informed and consents to allow the procedure despite such information, the patient can’t later complain that the surgeon was impaired.
    The authors suggest that there are obstacles to rescheduling the surgery if the patient is informed and declines to proceed. Most of the obstacles are economic, such as the doctor may lose income, the doctor may lose the patient to another doctor, and the surgery clinic or hospital may lose valuable operating room time. Wouldn’t it be unfortunate if policies that protect patient safety were not implemented for such financial reasons?
    The Sleep Research Society has endorsed model legislation that would require physicians who have been awake for 22 of the previous 24 hours to inform their patients of the extent and potential safety impact of their sleep deprivation, and to obtain consent from patients prior to performing medical or surgical procedures. The American Academy of Sleep Medicine and the Sleep Research Society have also endorsed drowsy-driving legislation stipulating that the functioning of a person who has been awake for more than 22 of the previous 24 hours is impaired by sleep deprivation.
    Page 2 of 2 - It is interesting that the American College of Surgeons posted a response in the same issue of the New England Journal of Medicine advocating against mandatory disclosure of sleep deprivation. The surgeons acknowledge the effects of sleep deprivation, but instead argue for more training to help surgeons understand how fatigue affects their mental and physical capabilities, and to use the knowledge to determine whether they should disclose the condition to their patients.
    The surgeons indicate that this approach will allow surgeons to “tackle the problem in a meaningful and dignified manner.”
    Do you really think we should be concerned about the dignity of a sleep deprived surgeon who fails to disclose to his patients that the demands of his or her profession have caused a loss of sleep and impairment? Wouldn’t it be more dignified to acknowledge the impairment and give the patient a meaningful choice?
    I suppose we should at least be thankful that the doctors are engaging in dialogue about this important issue. This important article in the New England Journal of Medicine represents a significant step for the medical profession. It is a matter of patient rights. The patient should have all information necessary to make an informed decision before proceeding with elective surgery. The risks and possible complications of the surgery should be fully disclosed and if the doctor hasn't slept for 24 hours, that too poses a risk to the patient and the patient deserves to be informed. Is that asking too much?

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