The title of this month’s column is also the title of a Jimmy Buffett song released in 1977. It has to do with the fact that when circumstances change, one is often required to change one’s way of looking at and dealing with the latitudinal changes encountered. I recall, I think it was back in the 1980s, I was at a continuing education course, and during the presentation, another attendee asked the speaker why he was advocating X when a few years before, he had been a staunch supporter of Y. Without breaking stride, the speaker said, “If you’re going to quote me, you gotta date me”. Apparently, there had been some further research into the area he was presenting. Over time, he had decided to change his mind and approach to the clinical manifestation under discussion. This is what good medicine is all about. The fact that you learned something in your training or in the early part of your career should not be the tune you dance to for the remainder of your career. Practitioners are supposed to grow and mature as they continue to be lifelong students, coupling newly acquired knowledge while enhancing their clinical expertise.
The other day, I was trying to find some old papers about something that was on my mind, and I came across an article I had written for this column some 25 years ago. It was titled Informed Consent and the Fourth Dimension, AJODO Vol.118 (4): 476-477; October 2000. It reviewed a nuanced perspective regarding informed consent. I was curious whether I felt the same way now as I did then, whether my perspective had changed, and if so, would my commentary be different now than it was then. I will let you know later; here is the case.
The facts in Schreiber vs Physicians Insurance Company of Wisconsin, Case No. 96-3676 (Supreme Court of Wisconsin, 1999) reveal that the plaintiff was undergoing the delivery of her third child. The first 2 had been delivered by cesarean section. During her first delivery, after 17 hours of labor, the doctor and patient agreed to abandon vaginal birth, opting instead to deliver the child via a cesarean section. The second cesarean section was deemed necessary because the prevailing medical opinion at the time was that if you had a cesarean section previously, any future pregnancies would also require cesarean deliveries. By the time the third child was ready, the medical opinion pendulum had swung back, changing once more; the new view was that vaginal delivery after cesarean section was not any more problematic than if a previous cesarean section had never been performed. The doctor and patient agreed to attempt a normal vaginal delivery.
Well, the patient is now in the hospital, labor is not progressing as hoped for, and the patient expressed a desire to forego attempting vaginal delivery and instead requested that a cesarean section be performed. The doctor urged the patient to continue attempting to deliver vaginally. This exchange occurred several times as her labor wore on. The patient’s labor became increasingly difficult, coupled with excruciating abdominal pain. The doctor could not determine the source of the patient’s abdominal pain, though differential diagnoses were considered. The patient again expressed a desire for a cesarean section to be performed, at which point the doctor tersely commented, “…if I performed a cesarean delivery on every woman who wanted one, then all deliveries would be by cesarean section.” At the trial, the patient testified that this comment made her both very upset and quite intimidated; she stopped advocating for the cesarean section. The doctor testified that had the patient continued with her desire for a cesarean section, he would have relented, but he took her silence as meaning she had agreed to follow his recommendation to continue trying to deliver vaginally. Some 13 hours into labor, the baby’s heart rate dropped, and the doctor determined that a cesarean section was necessary. During the cesarean section, it was discovered that the uterus had ruptured, the baby had been deprived of oxygen, and the result was that she was born a spastic quadriplegic. The facts clearly showed, to which both parties agreed, that had surgery been performed just 1 hour earlier, the baby would have been fine.
The court record reveals that at some point in time, during the litigation process, the plaintiff dropped the negligence claim and continued solely for lack of informed consent. The trial court determined that because the patient had initially consented to both a vaginal and a cesarean section delivery, deference was given to the physician as he believed he was acting in the best interest of the patient, as continuing with the vaginal delivery approach was an acceptable treatment alternative and was within the standard of care. As to the claim for lack of informed consent, the trial court held that there was no obligation to obtain new informed consent as “…a doctor would only need to re-obtain consent when there was a substantial medical change in circumstances so that the patient faced risks that were not considered when the original consent was given.” Because the risks for each type of delivery were the same, as initially explained, the court ruled that adequate informed consent had been obtained, and the case was dismissed in the doctor’s favor.
The case was appealed and the appellate court reversed the trial court’s ruling noting that when there are 2 or more medically acceptable options and the patient initially accepts 1 of them, if that patient withdraws her consent mid-treatment and opts for an alternative treatment, the first consent has now been voided by the patient, which in turn triggers the physician’s obligation to have a new informed consent discussion. The court stated the following:
[I]n order for the doctrine of informed consent to be effective, it must require a physician to do more than outline the methods of treatment available to a patient. Informed consent must also bind the physician to follow the course of treatment chosen by the patient so long as that chosen treatment is medically viable.
This decision was then appealed to the Supreme Court. They began their analysis with the following cautionary note:
[T]his opinion should not be interpreted as creating a patient’s right to demand any treatment she desires. Further, this opinion should not be interpreted as requiring physicians to perform procedures they do not consider medically viable, procedures for which they lack the appropriate expertise, or procedures to which they are morally opposed.
The court framed the legal issues this way. First, did the patient withdraw her consent? Second, if so, did the withdrawal, when coupled with the existence of other viable options, trigger the need for a new informed consent discussion? Finally, if this new duty does exist, should an objective or subjective test be applied as to whether the lack of another informed consent discussion was the cause of the injuries sustained? The court then looked at both the case law and the statutory regulations regarding those situations when one is required to obtain informed consent, as well as instances when it is not required. Wisconsin Statute section 448.30 states the following:
Any physician who treats a patient shall inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments. The physician’s duty to inform the patient under this section does not require disclosure of: (1) Information beyond what a reasonably well qualified physician in a similar medical classification would know. (2) Detailed technical information that in all probability a patient would not understand. (3) Risks apparent or known to the patient. (4) Extremely remote possibilities that might falsely or detrimentally alarm the patient. (5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment. (6) Information in cases where the patient is incapable of consenting.The court framed now stated that once consent has been given, it is not immutable; it can be withdrawn only when there is a substantial change in medical circumstances and only when it is medically safe to do so. The court noted the following:
To be sure, at some point in virtually every medical procedure a patient reaches a point from which there is no return. However, that point need not be arbitrarily created at the commencement of treatment. Rather it varies with the nature and circumstances of the individual procedure and continues so long as there exist alternative viable modes of medical treatment.
The court determined that upon the plaintiff withdrawing her consent for a vaginal delivery, if the physician continued to treat her in a manner she was opposed to, he would be, in essence, performing a procedure on a competent adult without her permission. Therefore, there is no question that this change in circumstances warranted the need for a new informed consent discussion. As the court later stated, “…such a situation essentially creates a blank slate upon which the parties must now diagram their plan for treatment.” The court then quoted a Colorado decision that held, “…where a new, previously undisclosed, and substantial risk arises, there may be an additional and independent duty to warn the patient of that risk.” (Cit Omit). To clarify, the Wisconsin court noted that it is not only medical changes of circumstance that require a new informed consent discussion, but legal changes of circumstance as well. Defining this train of thought, the court stated that where the change in circumstances is medical in nature, the new benefits or risks attendant to those changes in circumstances trigger the need for a new informed consent discussion. Where the change is legal in nature, the altered circumstance is the withdrawal of an option previously considered viable. Both changes require one to obtain additional informed consent. In no uncertain terms, the court noted the following:
We decline to view the informed consent discussion as a solitary and blanketing event, a point on a timeline after which such discussions are no longer needed because they are “covered” by some articulable occurrence in the past. Rather, a substantial change in circumstances, be it medical or legal, requires a new informed consent discussion. To conclude otherwise would allow a solitary informed consent discussion to immunize a physician for any and all subsequent treatment of that patient.
As to the objective vs subjective test, the court opted for the objective one, which is the more commonly used analysis. It asks what a reasonable patient in the patient’s position would want to know to be able to accept or reject a contemplated course of therapy, not what any particular patient claims they needed to know. Secondly, one must show that had the required information been disclosed, a reasonable person in the patient’s position would have acted differently than one without the benefit of the information. However, the court rightly noted that to apply the objective test in this case would result in the evisceration of the patient’s right to self-determination, as the facts clearly show that consent had been withdrawn, and this particular patient wanted a cesarean delivery, but was essentially talked out of it. Thus, the injuries sustained resulted from not having a new informed consent discussion once the consent for the original plan had been withdrawn by the patient—a decision that was not accepted by the physician. The Appellate court’s decision was upheld in the plaintiff’s favor, and the case was remanded back to the trial court to determine the amount of any damages to be awarded.
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