Fordham Law


Examining exceptions to physicians' duty surrounding informed consent

David Goldberg in Modern Medicine, July 01, 2011

Media Source

Publish date: Jul 1, 2011
By:  David Goldberg, M.D., J.D.

Dr. Scar is a prominent dermatologist with a large skin cancer practice. He has seen a patient for more than 10 years for a variety of dermatologic problems.

The patient is anxiety-ridden over the simplest issues. Every time she sees her physician she hyperventilates, and she has had more than one vasovagal reaction in his office.

Recently, this patient noted an enlarging lesion on her cheek. Biopsy revealed basal cell carcinoma. When the patient came back to his office to discuss the biopsy she began to cry. She said she wanted to know nothing about how Dr. Scar would remove the lesion. She refused, out of fear, to read or sign a consent form allowing Dr. Scar to remove her cancer. She said, "Tell me nothing. Just get the thing out."

Dr. Scar surgically excised the lesion, margins were clear, and there were no postsurgical complications. Unfortunately, six months after surgery, the patient was horrified by the scar on her face.

The patient sent a letter to Dr. Scar stating that had she known there would be such a scar, she would not have treated the carcinoma. In the alternative, she says, she would have gone to a plastic surgeon for her surgery.

Before the two-year statute of limitations, the patient files a medical malpractice lawsuit against Dr. Scar. She alleges that she was not given appropriate informed consent and was not warned about the scar. She also contends that she was never given the option to see a plastic surgeon.

Dr. Scar agrees that his patient never signed a consent form. He also agrees that he never warned her about the scar. He further agrees that he never offered the option of seeing a plastic surgeon. Will Dr. Scar lose this medical malpractice case?

Exploring consent

There are three main issues that informed consent litigation is centered around. The first has to do with disputes arising from a physician's duty to disclose all material risk concerning a procedure. A risk is deemed "material" when a reasonable patient that the physician knows or should know to be in the patient's position would be likely to attach significance to the risk in deciding whether to forego the proposed therapy or submit to it.

The second type of informed consent litigation arises out of disputes concerning a physician's duty to disclose possible alternatives to a given procedure, as well as risks of declining treatment. The third type of informed consent litigation arises from disputes regarding causation.

Causation

Causation is broken down into a two-prong test. The first is causation of the injury. To fulfill this prong, the undisclosed risk must have caused the patient's harm.

The second prong is known as decision causation. To fulfill this prong, the patient must be able to prove that if she had been made fully aware of the risks involved, she would have declined to undergo the treatment.

The rule of informed consent, and the duty of a physician to disclose all material information and risks associated with a given course of treatment, is the generally accepted standard. There are, however, some generally accepted exceptions to this rule.

Exceptions outlined

The first exception is in the case of an emergency when a patient is incapable of giving her informed consent. In this case, the potential harm from withholding treatment is greater than the potential danger of the treatment. There is also no available family member to give consent.

Related to this exception of emergency is that of incompetence. Here, a patient is unable to give consent because of a mental disability or because of infancy. Once again, a family member is not available to give consent.

The third exception to the duty to disclose is when the physician reasonably believes that full disclosure will have an adverse affect on the patient's physical or psychological well being.

The fourth exception is that a physician does not have to disclose such risks to a patient that are considered to be common knowledge or that the patient already knows of the risks.

A fifth exception arises in instances when a physician does not know of a certain material risk and should not have been expected to be aware of this risk, even when he is meeting the standards of reasonable care for physicians.

The final exception to the duty to disclose is when a patient waives her right to a full disclosure by requesting that the physician not inform him or her of the risks of a treatment.

Doctor's argument

Dr. Scar will contend that a reasonable person would know that a scar would be present after surgery. He will state that dermatologic surgeons excise skin cancers every day, and he had no duty to offer a plastic surgeon as an alternative.

Finally, and most importantly, Dr. Scar will note that his patient specifically refused to be told of the surgical risks. Dr. Scar may, in fact, win his case.

David Goldberg, M.D., J.D., is director of Skin Laser & Surgery Specialists of New York and New Jersey; director of laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.