Lawsuit if You Don't Disclose Your Lack of Expertise?

Mark Crane

Disclosures

October 30, 2018

In This Article

Your Experience -- or Lack of It -- Could Be Important Information

How much information must you reveal to patients about your experience with specific procedures, your track record, and outcomes? More courts are now saying that it's possible that lack of disclosure violates informed consent rules.

In a Iowa heart surgery case,[1] a surgeon had never performed a procedure he recommended. The patient experienced severe complications and sued for both negligence and lack of informed consent.

In a 5-4 decision, the Iowa Supreme Court in June 2018 ruled that the patient had the right to know about the surgeon's lack of experience. Although a doctor's experience generally hasn't been considered part of the informed consent process, the law is evolving. The issue is often decided on a case-by-case basis. Still, more disclosure of experience, and even outcomes, may be required.

New Ways to Hold Doctors Liable?

Some defense attorneys argue that the decision unjustly expands a doctor's liability. "Experience alone isn't a good criterion," says Brian Kern, with the Frier Levitt law firm in Pine Brook, New Jersey. "Many other factors come into play. In the Iowa case, the trial court found no negligence by the surgeon, and the informed consent count was dismissed. But the Supreme Court held that a doctor can be found not negligent but still be found liable for lack of proper informed consent."

"It's a slippery slope," Kern says. "What's the threshold? Maybe the doctor has assisted in hundreds of these cases but has done only a few as the chief surgeon. Should he reveal that he's done one case, five, 10, or 20?"

"The Iowa Supreme Court created a whole new area of liability by misplacing 'experience' under the informed consent doctrine. A jury that finds no negligence should not then be tasked with deciding what details might have been relevant to disclose to a patient. The ruling has imposed an infinite and unpredictable duty on healthcare providers," says Kern.

Many legal experts disagree. They say that including a doctor's experience as part of informed consent has been established law in many states for more than 20 years. "Transparency is what's needed. Patients have a right to know if their doctor has never performed a risky procedure before or is still a novice at it," says Malcolm McConnell, a plaintiff's attorney with Allen & Allen of Richmond, Virginia.

"What would you want a doctor to tell your mother or spouse?" asks McConnell. "It's not complicated. Respect the patient. Disclose information that respect requires you to provide."

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