Sword or shield?

The plaintiff sought treatment for a kidney stone that was lodged in his left ureter. The defendant attempted removal using a ureteroscope. During the surgery, the ureter was damaged beyond repair, and the patient was given the option of trying reconstruction using a portion of his small intestine or having his kidney removed. He chose the latter and later sued the defendant for both negligence and lack of informed consent regarding the availability of less invasive alternatives to deal with the stone. Such are the facts of Oghia v Hollan , 363 SW3d 30 (Kentucky App. 2012). At the trial, the jury found for the defendant regarding the claim that the treatment was negligent but found for the plaintiff regarding the claim for lack of informed consent, awarding him approximately $600,000.00. The defendant appealed.

It seems that the plaintiff had the same condition some 8 years earlier, went to the same doctor, and was treated using lithotripsy, a shock wave therapy to break up the stone so it could pass naturally; it worked. When he sought treatment for the new stone, he believed the same procedure would be performed, and the plaintiff’s wife testified that this is what the defendant told her would be done. The defendant did not recall the discussion regarding the procedure to be used. The experts for both sides testified that the duty of the doctor was to explain all viable treatment options along with their respective risks for the patient to make an informed decision about how best to procced.

At the close of the trial, the defendant asked that only 1 jury instruction be given: he, the defendant, had only to “…exercise the degree of care and skill ordinarily expected of a reasonably competent urologist acting under similar circumstances.” The defendant argued that if a jury instruction to obtain informed consent were also given, it might lead to conflicting verdicts. The plaintiff of course argued that the defendant had 2 separate duties; thus, the need for 2 instructions. The first instruction was obviously to conform to a given standard of care, and the second, “…to disclose the risks of treatment,…regardless of the adequacy of the ultimate treatment rendered.” The court agreed with the plaintiff and offered both jury instructions.

The next legal issue to be resolved was the defendant’s claim of comparative negligence on the part of the plaintiff in that he signed the consent form without reading it. The plaintiff testified that the procedure portion was blank when he signed it, and he also testified that he did not read the form, whereas the plaintiff’s wife testified that the form introduced into evidence was not the same one that she saw presented to her husband. Both the plaintiff and his wife indicated that they had asked to speak with the doctor before the procedure but that he had not done so. The defendant testified that the form noted ureteroscopy as the procedure that was to be performed. The doctor noted that he signed the form after the sentence that read, “… [he had] explained the nature, purpose, benefits, risks and alternatives to the proposed procedure(s); that he had answered any questions; and that [the plaintiff] had understood what he had explained.”

The defendant posited that the plaintiff should not have signed a blank form; he should have read it before signing it and should not have submitted himself to surgery without first speaking with him. To do so was evidence of comparative negligence on the plaintiff’s part and therefore, he asked for the following instruction to be presented to the jury:

It was the duty of [the plaintiff] to exercise ordinary care for his own health, safety, and welfare. If you find for [the plaintiff]… but are also satisfied from the evidence that [the plaintiff] failed to comply with this duty and that such failure on his part was a substantial factor in causing some injuries and/or damages, you will determine from the evidence and indicate what percentage of the total fault was attributable to [the plaintiff].

In deciding against the defendant, the court cited a previous Supreme Court ruling that dealt with a similar fact pattern wherein that court held:

The rationale underlying the doctrine of informed consent and a doctor’s duty to inform a patient is that a patient has a right to decide whether to consent to or refuse a proposed course of treatment. A patient cannot make an informed decision unless a doctor discloses information material to the patient’s decision. Thus, we conclude that generally in an informed consent action, a patient’s duty to exercise ordinary care does not impose on the patient an affirmative duty to ascertain the truth or completeness of the information presented by the doctor; nor does a patient have an affirmative duty to ask questions or independently seek information. (Cit. Omit.)

The court went on to state that it is illogical to require a plaintiff to formulate questions about their diagnosis and treatment or to engage in independent research regarding their affliction. It is the doctor who has the superior education and the skills necessary to address the patient’s problem, and it is up to that practitioner to assess what a reasonable patient would need to know and to provide that material information to him or her. It is up to the doctor, not the patient, to ascertain the treatment options and the risks associated with those options and to pass them on to the patient to enable an informed decision to be arrived at.

The court went on to note that as a general rule, juries should not be instructed that patients have an affirmative duty to ask questions or to pursue on their own inquiries as to the benefits and risks of alternative methodologies to address whatever their problem happens to be. In addition, a patient cannot be required to ascertain the truth or completeness of the information presented by health care providers, and to place such a duty on a patient essentially emasculates, to varying degrees, a doctor’s obligation to obtain a patient’s informed consent. The court did go on to state, without explanation, that there could be situations in which a plaintiff would have more of an affirmative duty to seek specific information, but as a general rule, a patient has the right to rely on the knowledge, skills, and experience of the doctor as espoused by him. The court upheld the informed consent award.

Commentary

We think that the informed consent forms that we use are all that is required to insulate us from exposure to liability on that front. The reality is that they may be—and then again, they may not be. Believing that these forms offer the protection you expect from them first presumes that your patient or their parent can read—some can’t and are too embarrassed to admit it, and so the form gets signed. Second, it presumes they understand what they are reading—some do, some do not. It is one of half a dozen forms thrust in front of them, which they then sign, often without reading it, because who has the time to read the reams of paper thrust upon them. Third, it presumes that if there are unanswered questions, they will be asked. Again, maybe yes, maybe no; for a host of psychosocial reasons. The bottom line is that you can’t rely on the reliability of a signed informed consent form. Sure, it’s a lot better than a sharp stick in the eye, but hey, there is a better way.

About a quarter of a century ago, I wrote that informed consent should be viewed as a sword, not a shield. Today I believe that more strongly than I did way back then. In an age in which people text each other instead of engaging in verbal discourse, communication is morphing from a fine art into one that is more abstract, like the work of Picasso. At least in orthodontics, the essence of the doctor-patient relationship is established during the first 2 visits: the initial screening or assessment visit and the consultation visit. Stop—I know; a lot of you, combine the 2. I won’t go in to the 16 variations on what is said next for those doing 1 step consultations, but it all boils down to something along the lines of “unless the full exam shows something else, what’s going to happen is what I just told you.”

How sad. You just asked somebody to give you 5 grand or more for the pleasure of beating them up for 2 years, and oh, by the way, sign this form because in case something goes amiss, I’ll be able to say, “I told you so.” There’s a solidly built relationship for you.

Conceptually, informed consent is a fabulous patient management tool. That 15 minutes to half hour that you spend with the patient or their parent explaining not only what you propose to do but also what you can’t do is invaluable. Getting the patient on the same page is not good enough; you have to be reading the same book too. When everyone is in sync, you won’t have to worry about bad posts because the results of that consultation will put it between the goal posts. And one other thing—do it yourself, don’t delegate it. Look, after over 40 years of private practice (fee for service, heavy third party, and Medicaid) and being in institutional clinic environments, I’ve had no lawsuits, no claims, no nothing. Why? A strong doctor-patient relationship. How? Taking the time to dig deep and communicate with my patient or their parent. They need to know that everything that I do to them is for them; I want them to know what I need them to know; and I need them to believe that I feel their pain, concern, insecurities, sacrifice, and any other emotion you want to throw into the mix. Try getting that using text messaging or a standardized form of some sort.

We provide our patients with a very personal service. We should be at their disposal. Our livelihood depends on them. Whatever we say, they should be able to take to the bank. Think of it this way. The spoken word is a sword, the written word is a shield.

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May 12, 2020 | Posted by in Orthodontics | Comments Off on Sword or shield?
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