Suppose for a minute that you have had some trouble with the state board of dentistry in the jurisdiction in which you practice. Maybe it was only 1 or 2 instances, but, regardless, the board determined that you were negligent on at least 1 occasion. The board suspended your license for 2 years but stayed the suspension and placed you on probation for that period of time. During this probation, you treat a patient, and the case goes south. The patient ultimately brings suit against you, claiming among other things that you lied to questions she asked during the informed consent discussion, such as whether you have ever had any licensure issues or disciplinary actions against you. According to her, if you had disclosed that you were practicing while on probation and had been truthful about prior disciplinary actions, she would have gone to another doctor. Such are the facts of Cipriano v Ho , Slip Op 20396 (NY Sup Ct, 2010). What say you? Is this the type of information that a reasonable patient would want to know before deciding to allow you to treat him or her? Is this the type of information that a reasonable practitioner would divulge under the same or similar circumstances?

For purposes of a medical malpractice claim based on lack of informed consent, New York requires that “[l]ack of informed consent means the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical… practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation” (Public Health Law, Sec. 2895-d [1]).

At trial, the plaintiff sought to introduce the sensitive information about the board’s actions. Whether that type of information is allowed comes down to relevance vs prejudice. In other words, would the relevance of allowing such information to be disclosed to the jury outweigh the potential prejudice that the information might carry? The theory behind this is that it is totally improper to allow the plaintiff to present evidence that what was done on 1 occasion (prior bad acts) presupposes that the defendant acted that way on another, different, or unrelated occasion. Fine; however, if such information cannot be used to establish that the defendant breached the standard of care, can it be admitted for any other purpose? The court said that it could: as rebuttal testimony during cross-examination. Therefore, this type of testimony could be used to refute a defendant’s testimony concerning acts that were immoral, vicious, or criminal, or conduct that bears on a witness’s credibility or veracity. For example, one could use the fact that the treating doctor’s license was under stayed suspension and probation not to show that he was negligent, but to show that he had acted fraudulently, that he lied, that he had moral character deficiencies, or that he had a patent indifference toward his patients, exhibited a lack of remorse, or showed blatant indifference toward the well-being of his patients.

In the original administrative action, the state board noted that the defendant did not admit that he made mistakes, and, when confronted with negative sequelae, he tried to shift the blame to other concurrently treating doctors. The board had hoped that the suspension and probation would have deterred the defendant from “sidestepping total responsibility for his patients and promote requisite accountability” because, as they viewed the defendant, he suffered from “a willingness and disposition to place the advancement of his individual self interest ahead of principle or the interests of society.” Bringing all of this back to the Cipriano case, the trial court ruled that the defendant did not have to disclose the status of his license relative to the claim for lack of informed consent; however, this information could be used to impeach his testimony if the circumstances allow it. We’ll discuss the appellate court’s decision later.

The Cipriano case needs to be examined along with Willis v Bender , 596 F. 3d 1244 (Ct. App. 10th Cir., 2010). In Willis, aside from the claim regarding negligence, the plaintiff also sued for lack of informed consent based on the following facts. The patient had undergone multiple abdominal surgeries in the past, and her surgeon advised her that any future surgeries should be performed via an open approach as opposed to closed (laparoscopy). Sometime later, the plaintiff started experiencing severe abdominal pain. She went to the surgeon who had performed all of her other surgeries, but he was unavailable and would be so for several weeks. She then sought the services of the defendant, who opined that her problem was related to her gall bladder and that in all probability it would have to be removed. The plaintiff informed him of her prior surgeon’s concerns and recommendation regarding the surgical approach. The defendant, however, proposed a laparoscopic approach for a number of reasons. The plaintiff then asked him about his experience and track record with laparoscopic procedures, whether he had ever been sued, and whether he had ever had any problems with his medical license. The defendant told the plaintiff that he had never been sued and never had any problems with his medical license, and that his success rate with laparoscopic procedures was “99.9% right on the mark.” In addition, the plaintiff asked the defendant to consult with her former surgeon about the discrepancy regarding the surgical approach to be used, and he said he would. When queried about the results of his conversation, the defendant said that the former surgeon agreed with his assessment of the problem and agreed with the closed approach.

By now, you should have a feel for what eventually happened. Because of the built-up scar tissue and adhesions, the laparoscopic approach to the cholecystectomy had to be abandoned on the right side. It was then attempted through the left side; this resulted in the defendant’s perforating the small bowel. The patient developed severe complications postoperatively, had to be transferred to another hospital, underwent reparative surgery, had additional postoperative complications, the whole 9 yards. To add insult to injury, during the postoperative phases, the plaintiff discovered that the defendant had been a wee bit untruthful. He had been sued on several occasions relating to problems encountered when performing laparoscopic procedures; he had several complaints filed against him with the state board regarding his competency; he was under the board’s investigation when the plaintiff had asked him all of her questions; and on top of all that, he never spoke to the previous surgeon regarding his admonition against attempting another laparoscopic procedure.

The plaintiff in the Willis case sued, claiming among other causes of action a lack of informed consent. The defendant answered in part that “no physician in the country has a duty to disclose such facts.” The plaintiff countered that, although that might be true as far as volunteering such information is concerned, this was certainly not the case, and doctors cannot be permitted to lie when asked direct questions. If this were allowed to happen, it essentially permits doctors to obtain a patient’s informed consent based on patently false information.

The trial court in Willis also ruled in favor of the defendant regarding the informed consent claim, stating the following.

In insisting that the duty of disclosure be tied to the intended purpose of the informed consent doctrine, this Court does not mean to suggest that lying to patients is without the potential for legal liability. Instead, this decision merely recognizes the limitations of the informed consent doctrine as a catch all cause of action. Because there are more appropriate causes of action for asserting [a] physician’s ineptitude or deceit, this Court cannot allow an impermissible expansion of the doctrine of informed consent in order to provide what would often be a redundant cause of action. There is simply no support for doing so.

The trial court noted that to allow informed consent claims based on a physician’s lying to a patient in response to direct questions about experience, track record, licensure problems, and litigation history would be tantamount to bringing before the jury a history of prior bad acts that, as previously stated, have no bearing on whether the defendant deviated from the standard of care on this occasion. Also, it has less probative value vs its prejudicial effect.

The Willis case was appealed, and the US Court of Appeals, applying Wyoming law, noted that, as in New York, a physician has a duty to disclose “only such risks that a reasonable practitioner of like training would have disclosed in the same or similar circumstances.” Expert testimony is required to establish what should have been disclosed. Because this was a case of first impression under Wyoming law, the Court of Appeals looked to cases in other jurisdictions. It concluded that the defendant’s misrepresentations to the plaintiff induced her to consent to the surgery, and therefore her consent could hardly be considered to have been informed. Since Wyoming follows the Restatement of Torts (Second) , the Court of Appeals noted that section 552 states the following.

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

The bottom line was that the trial court’s decision in favor of the defendant regarding the informed consent claim was reversed, and the case was remanded for a new trial on that issue.