The decision in Jamison v Kilgore (Miss. Sup. Ct. Docket No. 2003-CT-00599-SCT, 1/27/2005) reveals that, before having a bunion removed, the plaintiff was told by the defendant that within 4 to 6 weeks after the surgery she would be pain free. She avows that, based on this assurance, she consented to the procedure. She ultimately sued the defendant for lack of informed consent, asserting that she is in constant pain and had to miss 9 months of work; had she known this, she never would have consented to the surgery. The defendant moved for summary judgment, claiming that the plaintiff’s lack of an expert witness, a requirement, made her claim untenable. The trial court granted the defendant’s motion. The plaintiff appealed, and the appellate court affirmed the trial court’s dismissal. The plaintiff then appealed to the Mississippi Supreme Court, and the issue to be resolved was whether the plaintiff was required to produce an expert witness in a case claiming lack of informed consent. The Supreme Court affirmed the holding of the lower courts and dismissed the suit. Now for the rest of the story.
When a plaintiff files a claim for lack of informed consent, the 4 elements that are associated with all tort claims apply. First, the plaintiff must show that a doctor-patient relationship existed, and the relationship gave rise to the defendant’s obligation to conform to a certain standard of care; this is known as duty . Second, the plaintiff must show that this standard of care was not adhered to, known as breach of the duty . Third, the plaintiff must have suffered a compensable loss of some type, known as injury . Fourth, the plaintiff must show that the defendant’s breach of the duty owed was the direct cause of the injury sustained, known in legal parlance as the proximate cause .
Once a breach of the duty owed has been established, the plaintiff must prove 2 subelements that comprise the proximate cause. The first is that the plaintiff must show that a reasonable patient would have withheld consent had she been properly informed of the risks, alternatives, and so forth. Second, the plaintiff must show that the treatment was the proximate cause of the worsened condition. That is, the plaintiff must show that she would not have been injured if the appropriate standard of care had been exercised. Generally, proof of this subelement requires expert testimony that the defendant’s conduct—not the patient’s original illness or injury—led to the worsened condition.
Relative to the subissues, the plaintiff does not need expert testimony to prove that, if she had been informed of the potential negative sequelae, she would not have undergone the procedure. This is an issue that the jury can resolve without an expert’s help. Based on the testimony at the trial along with any physical evidence presented, such as the doctor’s records, the jury will believe either the plaintiff or the defendant. The second subelement, however, does require the testimony of an expert witness, because only an expert in the particular field of medicine that is the subject of the suit can explain to the jury, the trier of fact, the extent of the injury claimed and whether the breach of the duty owed to the plaintiff by the defendant was the proximate cause of the injury sustained.
It is well established that every competent adult has the right to control his or her body and decide whether to authorize a proposed medical intervention. Therefore, upon finding that a doctor-patient relationship existed, the doctor automatically assumes the obligation to inform the patient of the risks, consequences, and limitations associated with the proposed therapy. The sufficiency of this transmission of information allows the patient to grant the doctor informed consent to accept or reject the treatment under consideration. The court queried that “[O]ne cannot make an informed decision without being informed; but informed of what?” The answer, of course, is that a doctor is required to inform the patient of “those known risks which would be material to a prudent patient in determining whether or not to undergo the suggested treatment.”
Noting a potential problem dealing with which risks are material vs those that are immaterial, the court said that the first step is to determine what are the known risks, because it is only once the risks are known that they can be evaluated as to their materiality. Putting this concept into appropriate usage during litigation, the plaintiff’s first task is to somehow define what these risks are; that task requires the services and opinions of expert witnesses. In reality, any undesirable symptom, condition, sequela, and so on after the provision of any medical ministration, or the refusal to undergo the procedure in question, might or might not rise to the level of a known risk of the procedure. In other words, the court noted that, once the plaintiff established that her injury was a known risk of the procedure in question, she can then move on to whether the defendant breached his duty to inform her of that risk. After that, the issue of whether the risk is material to the objective patient can be addressed. Only upon a finding of materiality can the final issue of proximate cause be addressed.
The bottom line is that no expert medical testimony is required to establish what communications transpired between the patient and his or her doctor. In addition, expert testimony is not required when the matters under consideration are within the common knowledge of the average layperson. However, expert testimony is absolutely required to establish what risks are associated with any given medical procedure.
Commentary
If truth be told, we deal in what are for the most part elective medical interventions. In reality, we as a species don’t need teeth for our survival. Over the years, I have known a good number of edentulous people who were not malnourished, could still communicate, and still had a relatively good appearance. Even if one were to grant, for argument’s sake only, the necessity of a dentition in today’s world, the requirements of straight teeth, a Class I occlusion, and a molar-to-molar smile are certainly not necessities by any stretch of the imagination. Okay, there might be psychosocial benefits that attach to those pearly whites when neatly aligned, but the benefits are hard to assess. In many societies, it just doesn’t matter that much. Okay, Jerrold, but this is the United States, and we demand more. Let’s say that you have convinced me.
Assume for the moment that we do have a public that holds the Hollywood-starlet smile as an ultimate desire. No matter what, except in a very few cases, orthodontic treatment is still elective, and the bottom line is that the more elective the procedure, the more heightened the need to obtain informed consent. When I had my first bypass surgery (7, but who’s counting), my surgeon came to my bedside and told me the following.
Larry, your pipes are clogged. I’m your plumber. What I need to do is to go down to the plumbing supply store and get some pipe so we can run it around or bypass all those areas where your pipes are clogged. The plumbing supply store is your leg and the pipes are your veins. We will remove some of them and connect them into your coronary arteries to go around the blockages. If we don’t do this, your pump will stop working and you will die. After the surgery, you will feel like a truck has run over you. In a few days, assuming none of the new pipes are leaking, you’ll go home. In a few months, the only thing you will have to show for this is some scarring on the wall that your pump and the new pipes are behind. Sorry, but that can’t be helped. The only thing you have to do is remember all of the stuff that clogged your pipes in the first place and not allow that to happen again. Any questions?
I did have a few, but the point is that the more necessary the procedure, the less need there is for all the fancy-shmancy informed consent bugaboo that one deals with when things are more elective and unnecessary. We perform a service that few people in the world can provide. It is a service that an egocentric society highly values. It is a service that by no stretch of the imagination is a necessity. When we are allowed to invade a patient’s bodily integrity to provide this service, we must realize that some real negative sequelae will occasionally occur. Although they might be rare and have varied clinical significance, they are most certainly real and of great significance to the patients at the receiving end. We have a high level of responsibility to monitor for those potential negative sequelae and to deal with them appropriately when we discover them. But that puts the cart before the horse. If we are serious about assuming our professional responsibilities at the highest level we are capable of, then we first must obtain the patient’s informed consent.
The bottom line? Tell ’em what they need to know, in a manner that they can understand. When there are thunderheads on the far horizon, don’t paint pictures of blue skies and sunny days. As Sy Sims used to say in his commercials, “An informed consumer is our best customer.”
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