Recognizing this, women’s health activists have fought to put some teeth in informed consent by backing it up with legislation. Currently, three states (California, New York, and Texas) have passed informed consent laws specific to hysterectomy. "But as they are written and enforced now, these laws are pretty much a joke," the National Uterine Fibroids Foundation’s Dionne says. The law in California was passed in 1987, the one in Texas in 2003 — but when MORE magazine called medical board representatives in these states, they weren’t even aware such a law existed. They later reported that few, if any, complaints had been filed — not surprising, since presumably few patients are aware of the laws either. Since 1991, any New York State physician recommending hysterectomy has been required to give the patient information published by the state department of health (DOH) that provides details about the procedure as well as alternatives. But MORE magazine’s investigation found little evidence that the information is actually getting into the hands of the women who need it. Within the past year, DOH records show that fewer than 20 ob-gyn practices in the entire state ordered copies of the booklet. That poses the questions: How many of the more than 4,000 ob-gyns in New York are actually complying with the law and providing the required information every time they recommend hysterectomy — and how many, perhaps unknowingly, are breaking the law by not doing so? The DOH spokesperson says it has not received any complaints from patients, and that doctors can download the required information from the DOH Web site. But there’s no system to track how often doctors do download, and if they do, whether the information reaches patients, says Assemblywoman Helene E. Weinstein, who cosponsored New York’s law. "It’s the job of the DOH to ensure physicians distribute it…The purpose was to inform patients who didn’t know to ask questions. The ball was dropped," she says.
Caplan cites another problem with informed consent: Even when physicians mention alternatives, they often build in their own bias. They may tell you that laparoscopic or vaginal hysterectomy will carry a higher risk of complications than an open abdominal procedure. "But they are not finishing the sentence and telling you that this is true in their hands, but not necessarily in the hands of others," Caplan says. "Doctors often finesse informed consent in this way because they don’t want to lose business." Even ACOG’s pamphlet on fibroid treatment, which is what you’re most likely to find in ob-gyn offices, avoids mentioning the importance of the doctor’s skill. It clearly states that whether a hysterectomy is performed vaginally or abdominally "depends on the size of the fibroids." That’s true, as far as it goes. But the brochure fails to mention another crucial element: ability. The larger the fibroid, the more difficult the removal, however it is accomplished. But in many cases, experienced surgeons can do it laparoscopically, vaginally, or a combination of both, and do it well. A 2005 review of 27 trials conducted by the nonprofit Cochrane Collaboration concluded that a physician’s decision on which type of surgery to perform (open abdominal, laparoscopic, or vaginal) "is tightly tied to experience and comfort level."
Change: It’s in Our Hands
Given the way that doctors are trained, women should not look to the medical schools for any immediate improvement. Although less-invasive gynecological procedures are being taught, residents have scant opportunities to refine their skills. "Ob-gyn has become complex. In addition to gynecology, residents must now train in many things, like perinatology and ultrasound," Levy says. Residents are expected to "understand" laparoscopic hysterectomy but not necessarily "be able to perform it independently," according to the list of requirements issued by ACOG’s educational arm known as CREOG (Council on Resident Education in Obstetrics and Gynecology.) "This should change," says Alan Decherney, MD, of the UCLA School of Medicine.