The plaintiff in Allen v Harrison , Case # 111877, 2016 OK 44 (4/19/2016), decided by the Oklahoma Supreme Court, had the following facts. On June 1, the patient swallowed a “small nail.” We don’t know how small, but the first thing that came to my mind was an errant piece of orthodontic archwire; hey, it happens. She went to the hospital emergency room, and the ER physician examined her, ordered an x-ray of her stomach, and saw the foreign body sitting in the stomach just below the diaphragm. Based on his experience and assessment of the patient’s clinical presentation and exercising due judgment, he released the patient, prescribing (1) “a high fiber diet to let the nail pass,” (2) a return to the hospital if she had any problems, and (3) a follow-up appointment with her family doctor in 3 days. The next day, June 2, after a bout of severe vomiting, she returned to the ER. Later that day, emergency surgery was performed to remove the nail (our wire) from her intestines because it had perforated the bowel resulting in a severe infection. She ultimately required 2 more surgeries to treat the resulting complications.

The patient then became the plaintiff, suing the doctor based on a claim of negligence and lack of informed consent. Specifically, she claimed that the ER doctor did not disclose the potential risks associated with attempting to let the nail pass and the other alternatives to his recommended treatment: endoscopic or surgical intervention, or referral. The ER doc stated that since he was not qualified to perform the endoscopy or surgery and since he didn’t recommend that course of therapy, he had no duty to disclose those options. He further argued that a claim for lack of informed consent in Oklahoma had to involve some affirmative form of treatment, and he had no duty to offer treatment that was outside his ability or scope of expertise, particularly if it was a treatment he believed was unwarranted. He had done what he thought was proper under the circumstances, allowing for the possibility that further treatment might be necessary by advising the plaintiff that if any further symptoms developed she should return to the hospital where alternative treatments could be rendered. The trial court agreed, noting the following.

[T]he Court can find no case supporting the doctrine of informed consent where no action was taken by the attending physician. Rather, such doctrine applies when the treatment received causes injury, and alternative procedures were not explained. Plaintiff’s claim is one of negligence based upon Defendant’s failure to appropriately recognize and treat… [her] symptoms.

The informed consent claim was dismissed, but the trial continued on the negligence claim. In the end, the jury returned a verdict for the defendant doctor. The case was appealed. The appellate court affirmed the trial court’s ruling by holding that the doctrine of informed consent does not even come into play unless surgical treatment is rendered resulting in injury, and the alternatives to surgery were not divulged. The case was then appealed to the Oklahoma Supreme Court. It reversed both lower courts’ findings for the plaintiff and remanded the case for further proceedings based on the following reasoning and findings.

The court began by noting that “each man is considered to be his own master.” Given that premise, a patient can only be his own master if he is given enough information to enable him to make an informed choice, thus determining his own course of treatment. Oklahoma previously used the professional standard of informed consent: a physician was allowed to substitute his judgment for that of the patient (proceeding in what he determined to be the patient’s best interests). However, that standard of care was overturned in 1979 when the patient self-determination standard was invoked. This doctrine of informed consent is used by most states today and essentially holds that a doctor’s duty is to (1) “inform a patient of the medically reasonable treatment options and their attendant risks,” (2) “present the medical facts accurately to the patient or his proxy and to make recommendations for management in accordance with good medical practice,” (3) “disclose all courses of treatment that are medically reasonable under the circumstances,” (4) “not withhold any facts which are necessary to form an intelligent consent by the patient to the proposed treatment,” and (5) “not only disclose what he intends to do, but supply information which addresses the question of whether he should do it.” Not performing any of these facets would expose the practitioner to liability for any consequences stemming from the nondisclosure.

The court then noticed the uniqueness of the question being presented. Must informed consent be obtained if the doctor is recommending noninvasive treatment? The court began its answer by stating that the real question doesn’t revolve around invasive vs noninvasive treatment. The real issue, the only issue, is whether the patient received enough information to enable her to make an informed and intelligent choice about her medical needs and options. The court noted the following.

As a practical matter, a physician will recommend a course of treatment and a patient generally chooses to adopt the physician’s recommendation. It is well-settled that the ultimate decision rests with the patient. Therefore, physicians do not adequately discharge their obligations by limiting their disclosures to the treatments they recommend or treatments within their scope of practice.

… In examining the seminal cases shaping the informed consent doctrine, it is patently clear a physician has a duty to inform the patient not only of the medically reasonable alternatives the physician recommends, but of medically reasonable alternatives that the physician does not recommend to the patient or disclose… The doctrine applies equally to invasive, as well as noninvasive procedures. And, any other interpretation belies the fundamental premise that “each man [is] considered to be his own master.” At a minimum, Physician should have explained to Allen the associated risks and the alternatives to letting the nail pass through her digestive system along with his reasons for the recommended course of treatment.

Noting that physicians cannot be allowed to “perpetuate medical paternalism by giving the medical profession sweeping authority to decide unilaterally what [is] in the patient’s best interests”… since this would “severely limit the protections granted to an injured patient and jeopardize a patient’s right of self-determination,” the court then addressed the ER doc’s claim that he didn’t affirmatively treat the patient. Dismissing this argument, the court noted that, in Oklahoma, treatment is defined as “the use of drugs, surgery, including appliances manual or mechanical means, or any other means of any nature whatsoever, for the cure, relief, palliation, adjustment or correction of any human ill.” Recommending to a patient to “eat fiber and let the nail pass” unquestionably falls under this definition because it is a form of treatment.

The court concluded that the defendant, after reviewing the x-rays, determining the position of the small nail (our wire), and noting that it had cleared the diaphragm, then made a medical decision to let the foreign object pass. He admitted that endoscopy or surgical intervention was a medically viable alternative and that he did not disclose this information to the plaintiff. Regardless of his level of experience or training, and the facts that it was outside the scope of his practice and would have required referrals to other practitioners, it was precisely the type of information that he should have disclosed to the plaintiff because it would have enlightened her about the alternatives that she was entitled to know. Since he chose to treat the patient in this manner, he was not within his purview even if it was his preferred method of treatment for the clinical situation. The ultimate decision must rest with the patient.