Dr. Brian Wilhelmi

Earning both a MD and JD at Mayo Medical School, Anesthesiologist Dr. Brian Wilhelmi discusses informed consents, recording consultations, and video documentation to help support providers and mitigate risk. Dr. Brian Wilhelmi is currently the Chair of Anesthesiology at St. Josephs Medical Center, Creighton University Medical School.

Transcription of Podcast

Julie Soukup 0:01  
Hi, my name is Julie Yorumez. I am with medical memory. And this is our next episode of take one patient. I am very excited to be talking to my colleague, Dr. Brian Mahoney. He has a very interesting background with he actually is a doctor and a lawyer and graduated kind of with both of those degrees. And so he brings a really interesting perspective as we're talking about how recording how video how communication, all is impacted by both law and also a person within medicine. So thanks, Brian for joining us, or doctoral HMI for joining us. Why do you kind of tell us first a little bit more about your experience and kind of your know how in this space? Yeah, thanks, Julie, for inviting me to come today and talk with you.

Dr. Brian Wilhelmi  0:58  
So my background is I joined medicine, in medical school at Mayo Clinic. And

within a few years, I had gone to the Senator De O'Connor college of law, which was part of my training in law. I returned to Mayo Clinic and then went on to residency in anesthesia at Johns Hopkins before finally settling and out in Arizona at St. Joseph's Hospital digney St. Joseph's where I'm currently the Chair and the chair of the Creighton University School of Medicine's anesthesia department. So I've been doing that. And then at the same time I do a medical consulting business that hovers around the medical legal space, especially with medical malpractice, and work pretty extensively with physicians training them, not only in the

now practice aspects of things, but also in different components such as depositions, and how to respond to different types of questions, they may arise in their own practice. So that's where I'm at right now.

Julie Soukup  1:59  
Great. Well, one of the things that I think is really interesting, and this is one of the areas that you and I met when we were working with medical memory was really around informed consent. And that started to be a really big space, where a lot of providers were starting to not only use video to record them giving these instructions, but also even record pre record kind of their informed consent instructions to give to different patients that were having certain surgeries. And I think that's one of the interesting spaces that as we're looking at, you know, access to guests, as restricted as more people aren't able to always be in the room with these patients. We're looking at more and more of these conversations being recorded. Now, one of the questions and concerns that a lot of our providers consistently have is, well, what if I forget to say something? What if I don't say the right thing? And how I don't want to be sued for information that I didn't necessarily give appropriately via video? What were your kind of thoughts be in that, especially as it relates to the informed consent conversation?

Dr. Brian Wilhelmi  3:09  
So I think informed consent is, is is a really interesting topic with a medical malpractice and to some extent, a lot of the way that technology is unfolding. We're going to be seeing in the upcoming years, how objective evidence is used in the courtroom to help you know with our litigations, so not only in the classic sense of having pen and paper, medical records, or you know, just oral conversations, but we discussed habits and whatnot. But we'll actually be having more objective evidence in the form of video or emails or electronic communications like text messages, which will really start to impact court proceedings more and more as we go forward. I like to call it the time of informed consent plus, because it used to be simply that we would have a simple conversation. And if it was ever contested in a courtroom, we would basically have a, you know, an open discussion over who was the more reliable witness? Was it the provider of care? Or was it the patient? And after, you know, being in a litigation setting, we already have a lot of different types of feelings about the characters involved. And I think the beautiful thing about having videotape recordings, in this sense is it gives you a sense of, hey, this is who this person is to begin with, and look at, look at they're a good person, they're they're working as a provider, they're out there doing their best. And it really changes the flavor of how you look at the provider. So kind of this informed consent plus part, having video is not only a representation of what was said but it's also reputation of your character.

Julie Soukup 4:57  
Right. Well, it's interesting you say that because Because we, we, when we started looking at malpractice, and a lot of providers we started looking at recording would ask us the question, well, what happens if I'm sued, what happens and something like that we're like, we don't actually know. And this was five or six years ago, and this was really starting to come out. Now recording and telehealth is much, much more common, that I think people are already kind of relaxing and not thinking, Oh, my gosh, if I forget to say something, or do something, it's not going to necessarily mean that, you know, I made, I made a mistake, or I would be sued. But one of the things that we looked at, at different legal opinion letters, some of the lawyers in the community and just in some of the partnerships that we had, they said the same thing that they said, you know, you're showing yourself in the best light, you're showing yourself in your room, and your space, and your white coat, and doing all the things that you can to help educate a patient versus someone sitting across in a suit and tie and not in their best self. So it was like, you know, showing that character that empathy is also being recorded. And so be aware of, you know, maybe actually be in to your benefit, versus the other way around.

Dr. Brian Wilhelmi  6:05  
Yeah. So let's, let's take a step back, even just to look at informed consent. So if you had to look at all malpractice cases, probably probably 10 to 15% involves some form of informed consent claim. It's a minority of cases, but at the same time, that minority can be very important if it's you. So when we look at the standards that we're looking at, traditionally, the standard 50 years ago would have been, you know, what does a reasonable physician expect to inform providers information to the patient, so that the focus is really on the reasonableness of a physician. So the reasonableness standard is really, really common in torts, Mrs. What malpractice is a tort. But in this case, now, as we move to an era of more physician or paid or farming, patient autonomy, we're looking at the reasonableness standard in a different way across almost every jurisdiction, which is what would a reasonable patient want to understand about their care in order to make good choices, I'm looking into some things just to kind of inform this, you know, if we look at the American Medical Association, they've come up pretty strongly on informed consent, that there is kind of three points, which is the first is to assess the patient's ability to understand relevant medical information. So you have to really break it down to the patient's level, or if they're, if they're not able to make independent voluntary decisions, there needs to be a decision maker present. The second is, is to provide relevant information accurately and sensitively. Keeping in mind that patient's preferences for receiving medical education. So some people will want traditional oral conversations, some people will want video or other types of screening questions, which I think would be very useful. And this is part of the medical memory that I think is really ingenious. We should include, you know, not only the diagnosis of what's going on, but what this intervention would do for you, you know, what is the intended intervention do? And then finally, the last one is the burdens and risks, and, you know, expected benefits of all options, including foregoing this treatment. And so we talked about risks, benefits and alternatives. And one of those alternatives is always Hey, what if we don't do this at all? So in that way, we are moving it into providing a really full understanding of what a reasonable patient would want, at this point in time with very rare exceptions. So I think that that's what's really coming into this era of, you know, informed consent plus is we are going to be providing the patients with different ways of receiving that information specified to who they are. And, you know, specifically looking at video is one of those options,

Julie Soukup 8:58  
right? What is interesting, one of the things that you said is being able to prove that they are able to understand the information and receive the information. And and that can become a very big challenge when you're looking at just two people in a room and no one else even knew what happened in that room. Where I do think he for, you know, University of Southern Florida, for example, they have their neurosurgery team records, they give videos of these and then they record these conversations to simply to capture the patient asking questions, and then being able to respond to the questions to kind of prove that, okay, we're having this dialogue still. It's not me just saying, Hey, we're gonna do this, right, like, thumbs up. Like, it's like making sure that they're really, you know, having that back and forth and being able to prove, okay, I do comprehend and understand what we're gonna be doing today.

Dr. Brian Wilhelmi  9:47  
Right, right. And I think that's the beauty of having a responsive style of technologies that you can say, first off, you can program in to say, you know, do I did I received this information And do I have any other questions? You know, if you have other questions, maybe they should be forwarded in some form of communication that you choose. Maybe it's electronic, maybe it's oral, maybe it is written, you know, those same types of things. But I think the ability to track your patients, and you know, whether they receive the information or whether they are actually making good judgment calls, regarding, you know, you know, being able to ask questions, and have your questions been satisfied, satisfactorily answered. Right. So, you could track, you know, hey, how many of my patients feel as though they have had satisfactory consent? Yeah. 95%. Wow, that's fantastic. Yeah, that's, that's a good metric to track, right?

Julie Soukup 10:43  
So how would you even suggest, if you're gonna even give it rice, your provider there, where they're either starting to, you know, just be more aware of their communication style as it comes through informed consent, or looking at now, using video recording these things? And what would you say is, Hey, these are kind of the biggest tips that you should think about to ensure you're following this process and not at risk.

Dr. Brian Wilhelmi  11:06  
Right. But with import consent, I always say, you know, the most significant and the most common, right, so within a seizure, for instance, you know, I always do, quote, a risk of death, even though death is extremely uncommon, it's extremely severe. So almost, if you were to make an equation, you would say, severity, times frequency, and that's whether I should talk about it, right. So if it's extremely severe, it almost makes very little difference of how common it is. Right? So death is extremely uncommon, but I still mentioned a risk of death of about one and 250,000. I also talk about serious injuries. Now, within anesthesia world, we talk about things like neurologic injury, cardiac injury, or renal injury, those are some of the most common anaesthetic major complications. And I'll lead those general topics, you know, renal, neurologic, cardiovascular, almost at a systems level. And with those specifically, if I had to get more specific, I will go into it with individual patients. But I would probably put that as about one in 10,000 risk for most patients if you had a general population. So still, it's it's not very common. But then there are things that are more common in anesthesia. For instance, in anesthesia, the risk of becoming postoperative nauseous is very, very high. Yeah. And so I mentioned that even though it's not as severe, even though I think at the time, you might feel like it's pretty severe to be nauseous. However, I mean, at the time, but it is very, very common. So I do make a mention that as well as I make a mention of irritated throat. So you might have a scratchy throat or somewhat painful throat. That's pretty common, even though again, a few days later, most people say hey, I feel pretty good about it, right? And then I'll kind of start to personalize risk. So you know, someone comes in with three cardiac stents, I'll say your risk of heart attack is greater than the average patient, you may, you may know that, because you have already had discussions with your cardiologist, right. And so I'll personalize risk like that. And so that's the beauty of kind of an approach to informed consent. So first off, use that equation to say severity times frequency, and really address the most severe and the most frequent, and then start to personalize risk, you know, so for specific people will have specific, more personalized risks. And I think that'll help you kind of guide you to, you know, getting a large percentage of those big topics out of the way.

Julie Soukup  13:40  
Because for the most part, you probably don't list every single thing that possibly could happen. And I think that's one of the biggest questions or concerns for some providers that are like, well, now I'm gonna record it, what if I don't list the one thing that then they ended up having? And keeping in mind, you know, even a video recording or even recording that message is only part of a grander conversation. Oftentimes, they're listed in the, you know, actual paperwork that they signed, it's not like, this is the whole piece, but what are your thoughts about like those that are like, what if I forget to mention something? Right? The one thing that they happen to have happen?

Dr. Brian Wilhelmi  14:18  
Right, right. And that's the beauty of what I would call that informed consent. Plus, I don't think that any one provider will mention every single topic every single time. And that's that renal reasonableness standard, right? So it's not the perfect provider, but it is what a reasonable patient would want to hear, right? It's not the patient who needs to hear everything, but it's what a reasonable patient would want to hear. So, you know, so that's kind of a guide, even though it's not a perfect guide. But that's where your supplements what the beauty of having, you know, traditionally it has been a informed consent, piece of paper, some objective documentation. But increasingly now with this era of electronic communications, it is moving into these video conference or these videotaped discussions of informed consent, or even these feedback type of systems where you can have the patient answer one or two questions regarding, you know, what they perceive the risks to be? Or what what was mentioned in the video that was just pre pre played for them, right, prior to answering this questions,

Julie Soukup 15:28  
right? Because you mentioned that that that's a really big piece is making sure that the patient like has some sort of response to their ability to understand so how do most providers kind of go about ensuring that your checkbox in the informed consent place is hit in a communication site without putting themselves at risk? Right? How's it risk?

Dr. Brian Wilhelmi  15:51  
Well, I think I think when we talk about objective data, a lot of these things have some pretty interesting metadata on them, you know, so like, for instance, you might be able to save the time and date of when the patient had this confirmation. Without with, you know, just a simple click of a box, or, you know, oh, by the way, this when you send this in, there's an automatic response. Did you have any more questions? Yeah, you could program in any number of interactions. And by doing that, you can continue that conversation. And eventually, this is the beauty of bringing all this in front of a jury as far as objective evidence that you say, wow, you know, this, this physician really went out of their way to not only have a conversation, which we recorded, but also oh, here's a sheet of paper, of informed consent, almost like a full description on a paper, maybe a video, oh, here are some different questions that were asked and answered. And here some date and time metadata. So we have a really, really full, robust amount of objective evidence to say, wow, this person went out of their way to really try and enhance the patient's experience.

Julie Soukup 17:01  
Right? Well, that's I think goes back to what you're saying is, what's being reasonable is even if something's you know, forgotten to said, or at the beginning, if you're saying, Hey, I'm doing everything I can to best educate my patients by providing all these resources or supplements, to continue this as being a conversation and not just your sign this right away, becomes powerful as you're trying to, I guess, plead or prove your case? You know,

Dr. Brian Wilhelmi  17:25  
right. Right. In frequently, when I document informed consent, as a lawyer, you know, I'll say the risks, benefits and alternatives have been discussed, as well as the alternative to doing nothing. So, you know, risks they go without saying the ones we just mentioned, the benefits, you know, this was a benefit. This is what we intend to have happen. This is why the alternatives, maybe there is this procedure, maybe there's a separate procedure we could discuss or a different way of doing this that we could discuss, and then really, the option of just, you know, listen, we don't have to go forward. And I think by saying risk benefits alternative, including the risk of not doing anything, it eliminates a lot of those challenges. And when I use the word disgust, it's incredibly specific. Okay, discussion involves a two way exchange of ideas, right? I'm not, I'm not it's not an informed consent plague. It's an informed consent discussion, right. And so it's that back and forth. That's really, really key in this situation. So I think

Julie Soukup 18:30  
the things that became pretty powerful with a lot of our partners that are using medical memory right now, where they have their doctors pre record, you know, the rest benefits alternatives to some of the major surgeries that they're doing? Well, when they're able to send that out to a patient, they're still having that as part of the conversation, but they are doing what you're saying is there's a timestamp that they were sent it timestamp that they watched it, even a timestamp that they shared it, shared it with loved ones, or anyone else that might be their medical power of attorney or kind of also in packable, in that decision making process. And so it's interesting that even kind of those broad strokes of these extra supplements, as you're saying, can kind of just continue to prove that the provider is doing everything that they can to best educate so that if something does happen, or if there is something brought about, it's providing more, you know, resources or proof that they're being reasonable in their explanation.

Dr. Brian Wilhelmi  19:28  
Right, right. And I think the beautiful beauty of this is that it provides patients with a ongoing educational experience, even when they're not physically in the presence of a busy physician. Okay, so if you're a practice, you're out there and you're seeing a patient every 15 minutes to our you know, that might be the one moment you see them or a couple of moments you see them be prior to surgery or prior to any other type of intervention. Meanwhile, you know, this ongoing, sending out of a video timestamping asking questions providing that option of electronic communication. Wow, that's a whole nother area where you can have, you know, conversations and things that would you can have, but at the same time be utilizing your own time efficiently to see other things and have other things going on at the same time. So

Julie Soukup 20:27  
now, what are your thoughts, even to about, you know, one of the components, I feel like I remember hearing was about shared decision making and providing the patient, you know, the resources, or I don't know, if it's the time to make sure that they're able to have other people part of choosing, you know, making their decision to have surgery or not? What's kind of your perspective about that?

Dr. Brian Wilhelmi  20:51  
Well, I think I think, you know, as we look at this code of medical ethics from the American Medical Association, one of the first things is it talks about, you know, the relevant information, and what's their ability to understand it. So, you know, as we all age, and or, you know, suffer various types of medical maladies, you know, we, we kind of have a natural decline of the ability to make our own decisions, and those kids situations, we might have, you know, fairly complex webs of decision makers, you know, sometimes it's one really strong power of attorney or someone who's making all the legal decisions. And sometimes there's almost like a team to speak to, and some of those teammates are there, some of them come to the appointments all the time, some of the teammates are at home. And that's really where sharing that appointment with other people becomes like a real beautiful thing, because that's where you can really get the value of getting the whole team together. And those discussions, then, you know, we'll prime your patients to have the decision made, and have the the team so to speak, all ready to go with this decision making as well. And that's the beauty because, you know, no one wants to be the only person left out and say, Oh, I was the one who didn't understand anything. And I was the one who wasn't told things, but everyone else was in this case, everyone can share that same discussion.

Julie Soukup  22:17  
Right. Right. No, absolutely. And providing like the patient with the means to to give these resources or this video or their sheet to the other people that they may potentially be involved in, in that capacity.

Dr. Brian Wilhelmi  22:30  
Right. Right. And I think that, you know, what's very interesting is, is we, you know, we talked about various lawyers and their opinions. You know, one of the strongest opinions is it is about rapport with your patients, it is about having them feel comfortable with what is being said to them. And, you know, the real key is, you know, a lot of times, you know, people are initiated medical malpractice, because they feel as though they've been misled, or in some way, not provided all the information that they would need to make decisions, or that someone, frankly, didn't tell them the truth. These are the things that really set off malpractice at a much higher rates. And that's really, really well studied in the literature, if you were to take through and say, Well, what is this number one cause of malpractice? It's not only a bad outcome, but it's a bad outcome plus, it's a bad outcome, plus all these negative feelings. You know,

Julie Soukup 23:31  
so yeah, absolutely. Why do you think just as as the kind of tip or communication tip, even you had mentioned before, is, you know, that equation that you had said, and then also making sure that this always feels like a discussion? This is never one piece of the conversation? It's, it's also, there's a little bit of a patient responsibility that if you are having questions, you're not understanding, as long as you're being asked, Hey, did you get it you have any questions or you understand the risks and benefits? There's a little element of, you know, what's the patient's responsibility to make sure that they're also, you know, being accountable to all of these pieces to and are able to have that discussion, and you keep saying the word discussion, versus just like consent, it's really a conversation throughout that whole process, which is sometimes more than an appointment more than two, right?

Dr. Brian Wilhelmi  24:21  
Well, I think it's beautiful, you know, when you when you talk about autonomy, there are rights, right, like we have rights to what we believe that we are entitled to as far as what we are entitled to know. And we're entitled to be informed and what information that we are entitled to understand. Right. But there's also responsibilities. I do think that, you know, when we look at patients, part of that reasonable standard is what is a reasonable patient's responsibility. So if they come in and they want to be fully uninformed, like willfully that's that's reflected that way as well. Yeah. And I think the beauty of recording feedback is if someone truly chooses to be mal informed Yeah, that's also recorded.

Julie Soukup 25:02  
Right? And that's He Said, She Said Part Two, you know,

Dr. Brian Wilhelmi  25:06  
yeah, it really does lock in a pretty objective standard in that way. And I think that's pretty good when you're talking about, you know, when we're looking at the practices of the future, they are going to be more ingrained with things other than, you know, paper and pencil, they're going to be ingrained with video and metadata and other types of information. So very important.

Julie Soukup  25:28  
So last question for you is, is, what, what advice or thoughts would you give to a provider who's, you know, wanting to dive into technology wanting to use something like medical memory, where they're recording their business more often, and are a little bit nervous either a bit on their own communication skills, or just nervous about potentially getting sued? What would be, you know, a piece of advice or two that you would give to a provider in that space?

Dr. Brian Wilhelmi  25:57  
Well, I think a big part of it is to look at your industry standards, you know, so for me, as an anesthesiologist, I actually looked to the American Society of anesthesia, regarding their common informed consent discussions, and really the risks and benefits that are kind of commonly discussed within the field. Okay, that is the standard, when we ultimately look at it as part of it is that standard of what would you know, our physicians do in these situations, so your own field will have pretty good standardized discussions available, if you really look into literature and understand your risk profile of what you're doing, as well as the complication rates of various types of procedures that you embark upon. So it is pretty important to really understand your literature, and to look at whether the industry norms, like what people tend to put on consent forms or, you know, mentioned in their discussions, you know, but again, that when you when all else fails, that, you know, equation, severity times, likelihood is pretty standard, that's a good one to, to use your own mind.

Julie Soukup  27:06  
Right. One, as you said kind of earlier is, you know, you're still providing all the information you can, if you are providing more information by using video by providing that patient with a resource that they can continue to go back to, regardless is, is you're kind of it's showcasing it in more of a positive light by recording and using it versus a risk factor.

Dr. Brian Wilhelmi  27:28  
Right. Right. And I think that, you know, when you when you are talking to patients, you are, you know, you're balancing it, you're balancing benefits, you know, if you're saying, Hey, we're doing this for a reason, there's a benefit to this. Now, there is a risk involved, but there's a risk of doing nothing as well. Yeah, yeah, a lot of times, otherwise, it wouldn't be doing the things in the first place. And so I think that a lot of times, your discussions can be very frank. And and also, you know, you can remark that you understand the seriousness of the situation, I think patients actually generally prefer that. And that's part of that. Avoiding surprise is to remark on the seriousness of the situation. And I don't think patients are as afraid of that as I think several physicians tend to feel sometimes I think people are very afraid that if I actually tell them that this is potentially serious, they will shy away from it. And I actually find somewhat the different that patients tend to appreciate people being very, very forward with that type of information.

Julie Soukup  28:39  
Absolutely. Well, wonderful, you know, it's actually well HMI, you are a wealth of knowledge. This is a very interesting subject. I think as, as people are starting to lean more into different ways of technology, lean, more trust, recording, I so so appreciate your intellect and your time to talk about something incredibly relevant, especially as I get patients are starting, or providers are starting to do this more often. So thank you so so much. It was a pleasure having you, um, anything else you want to say?

Dr. Brian Wilhelmi  29:09  
So I, I'm excited to come back when the first cases come through that actually reflect more of this new practice. Hopefully, they are resoundingly found in favor of the people who are the providers for providing good care. So we'll be back to talk about that.

Julie Soukup  29:29  
Thank you so much. I appreciate you have a good rest of your night.

Dr. Brian Wilhelmi  29:32  
All right. Thank you.

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