Q uintanilla v Dunkelman, 34 Cal. Rptr. 3d, 557 (App. 2005, rev. denied, No. 14252, Cal. Sup. Ct., December 21, 2005) is an interesting case dealing with informed consent that has direct application to orthodontics. Factually, it is very long, tedious to read, and language-intensive, so I’m going to provide a summary that can quickly get us to the heart of the matter. The plaintiff came to the United States when she was 2 years old. She grew up in a Spanish speaking household but obtained her entire education in our public school system. She was fluent in both Spanish and English. She could read and write English, but she could not read or write Spanish .
The plaintiff had a recurring gynecologic issue. She sought treatment from the defendant, who was a general surgeon who performed gynecologic surgeries. He also owned the ambulatory surgical center where the treatment was to be rendered. The defendant discussed the plaintiff’s problem and his recommendations with her in Spanish as they were both bilingual. According to the plaintiff, the defendant used a lot of technical jargon and anatomical words with which she was not familiar. The defendant, of course, claimed that he believed he was being understood. The plaintiff suffered an acute flareup, and the surgery date had to be moved up. The defendant told the plaintiff that he was going to be unavailable, the plaintiff did not want to wait, and so she agreed to have the surgery performed by another surgeon who was employed by the defendant. The plaintiff first met the operating surgeon a few minutes before the procedure was performed.
The defendant contacted the operating surgeon the day before the surgery and told him of the diagnosis and what needed to be done. When the plaintiff presented herself for surgery, she was met by the office manager and was given several forms to initial and sign, including the informed consent forms. They were all in Spanish, as the office knew she was fluent. The office manager was also bilingually fluent, and she testified that everything was discussed with the plaintiff in Spanish and that she was left with the impression that the plaintiff understood what was to happen. The plaintiff again stated that she did not understand the terminology that was being used but trusted everyone. She believed that they all understood her problem and that it would be addressed as it had been in the past. Therefore, she signed the paperwork and went ahead with the procedure. Postoperative complications ensued, leading to the lawsuit.
At trial, it came down to the following issues. The first issue was whether a signed informed consent form, written in the language the patient speaks, is sufficient in and of itself to determine that the patient understood the material aspects of the procedure to be performed. The second issue, closely aligned with the first, revolved around the question of whether a signed informed consent form in and of itself is competent evidence that informed consent was obtained. The final issue looked at whether the information provided by the first surgeon, the owner of the center, was sufficient to protect the surgeon who actually performed the procedure, or did the performing physician personally have to obtain the informed consent from the patient?
In its decision, the court noted that there are essentially 4 pillars on which the doctrine of informed consent rests.
The first of these postulates, is that patients are generally persons unlearned in the medical sciences and therefore, except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity. The second is that a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment. The third postulate, is that the patient’s consent to treatment, to be effective, must be an informed consent. And the fourth is that the patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the physician that transcends arms-length transactions. From these ethical imperatives, we derived the obligation of a treating physician of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.
In addressing the first 2 issues, the court noted that the evidence presented at trial disclosed that (1) the plaintiff was only told about the dilation and curettage but not about the laparoscopy or the surgical removal of a lesion; (2) the doctor who performed the surgery never discussed the procedure with her; (3) the plaintiff was given an informed consent form to sign in a language (namely, Spanish) that she couldn’t read, and which was not interpreted for her; and (4) she was not told about any long term negative sequelae of the treatment rendered.
As to the argument that a signed consent form constitutes conclusive proof of having understood the diagnosis and treatment, the defense asserted the premise that if someone signs a document they are, if nothing else, tacitly admitting that they know what is contained in it, and that to allow patients to claim, after the fact, that they couldn’t or didn’t read the document nor understand its content, and to allow this to be a defense, would have a significant and negative impact on the practice of medicine. In response, the court noted, “…each patient presents a separate problem …the patient’s mental and emotional condition is important and in certain cases may be crucial, and …in discussing the element of risk a certain amount of discretion must be employed consistent with the full disclosure of facts necessary to an informed consent.” In addition, the court stated that:
It is the physician’s duty to disclose to the patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment. Material information is information which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure.
The court acknowledged that the laws governing the doctrine of informed consent have “…helped effect a revolution in attitudes among patients and physicians alike regarding the desirability of frank and open disclosure of relevant medical information.”
The final issue dealt with whether the defendant should be held responsible for the operating surgeon’s failure to obtain the plaintiff’s informed consent. The court noted that the pattern jury instruction pertaining to this issue, Book of Approved Jury Instructions No. 3.77 states: “When negligent or wrongful conduct of two or more persons or negligent or wrongful conduct and natural causes contribute concurrently as a cause of injury, the conduct of each [person] is a cause of the injury regardless of the extent to which each contributes to the injury.”
The court noted that the role of the defendant was more than that of a mere referring physician. The evidence showed that (1) the defendant was the sole owner of the surgery center; (2) the surgeon who operated on the plaintiff was employed by the defendant; (3) the defendant was the one who met with the plaintiff, diagnosed her problem, and discussed the treatment to be rendered; (4) the defendant phoned the operating surgeon and told him what procedure to perform; and (5) the operating surgeon did not perform his own independent evaluation of the plaintiff nor discuss the procedure with her.
The court found for the plaintiff on the lack of informed consent issue.
So, you own an office or multiple offices and have other doctors working for you. In addition, you are the one who discusses the case with the patient; you tell the patient what the problem is and what is going to be done to correct it. You do this in the language that the patient speaks. You are convinced that you have adequately explained everything. Your office provides the patient with an informed consent form to sign that is written in the language that she is conversant in. You believe that you have covered all the necessary bases.
You tell your employee doctor what your diagnosis is and the treatment plan you have recommended to the patient, which is, of course, the treatment plan you expect him to follow. Your associate or employee proceeds to treat the patient as per your directives, believing that (1) your diagnosis is correct; (2) your treatment plan is appropriate; and (3) because you sign his paycheck. He also (4) believes that the manner in which you obtained the patient’s informed consent is sufficient to insulate him from any claims to the contrary; and (5) because of all of this he had no independent obligations regarding diagnostics, treatment planning, or the obtaining of the patient’s informed consent.
I don’t want to insult your intelligence but the best way to really understand the doctrine of informed consent is to really dumb it down. Orthodontics is elective. Forget about medically necessary orthodontics. Except in rare instances, it doesn’t exist. Sure, there are a lot of great reasons to undergo orthodontic therapy, but true medical need isn’t one of them. As a species, we can eat and communicate successfully with crooked teeth. Yes, orthodontic therapy can enhance one’s self-image, although there are some pretty secure and successful people with crooked teeth. Now before you all get your collective knickers in too much of a twist, I am ortho’s #1 fan. The first third-generation boarded orthodontist and all that. It has given me my life as I know it. I owe orthodontics a lot, and I have given it a lot. What I haven’t given it is the approbation of being the be-all and end-all.
If somebody is going to undergo 2 years of treatment—maybe have 4 perfectly good teeth removed, undergo some degree of repetitive discomfort, have to commute every 6 weeks or so to wherever I am, and pay me mid to high 4 figures for the pleasure of doing so for a service that’s elective in nature—they have an absolute unfettered right to know what their problem is, why treatment is being recommended, what real benefits will be derived, how I plan on doing it, what risks, compromises, or limitations exist, what their responsibilities will be, what the realistic prognosis is for achieving whatever their expectations are, and the fact that they will live to a ripe old age without treatment.
I believe that the only way I can give them this information is to do it conversationally in a language they understand that is at the fourth to sixth-grade level. I have to make sure that they “get it.” The only way to ensure that is to have them give it back to me in some way and document in some fashion that they “got it.” Think about it this way: if you wanted to undergo a medical procedure you really didn’t need, wouldn’t you want to know why somebody was recommending invading your bodily integrity? Wouldn’t you want to know about any bad stuff that could befall you down the road as a result of your decision to pay someone a lot of money to do this to you? Darn right you would. And the only way to know this is to clearly comprehend—in no uncertain terms and in a language you understand—the whys and wherefores of the proposed treatment.
I listen to residents talk to patients all the time. I used to listen to other orthodontists talk to patients all the time when I visited their offices. I listen to how the staff are being trained to talk to patients. Unfortunately, many of us still use words and terms that mean nothing to the average Joe. We emphasize the potential positives because it’s good marketing and salesmanship. We gloss over the potential negatives because to do otherwise is not good marketing or salesmanship. As Johnny Mercer wrote in 1944, “You’ve got to accentuate the positive, Eliminate the negative, And latch on to the affirmative…” We are, I believe, to a great degree, limited by our communicative skill set. We don’t want to turn people off from accepting orthodontic intervention because, to put it bluntly, this is how we make our living. So instead, we turn them on by employing slick “educational” models and materials that many of us mistakenly believe qualifies as material information sufficient to elicit a patient’s informed consent.
When I think about potential liability exposure, I know that it doesn’t come into play without the existence of a doctor-patient relationship—not a treatment coordinator-patient relationship, nor an office manager-patient relationship, or anyone else other than a doctor-patient relationship. It’s where the rubber meets the road. I have often said that the 2 most important visits are the initial screening and the case presentation visits, both of which should be undertaken by the person who will render the treatment and be responsible for everything that happens under that umbrella. It’s been 40 years, multiple thousands of patients, a variety of delivery models, not a hint of a lawsuit. Why? A strong doctor-patient relationship. How? Making sure they know what they need to know in a language they can understand. I make it my mission to make sure that they “get it,” All of “it.” The realistic good, the potential bad, and the rarely encountered ugly. And, I re-enforce all of “it” constantly throughout treatment with corroborating documentation because just doing “it” once at the beginning doesn’t cut “it.”