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

Mark Crane

Disclosures

October 30, 2018

In This Article

Should the Physician Have Disclosed More?

On January 2, 2004, the patient underwent a Bentall procedure, an intricate surgery to correct defects of the aorta. The physician who performed the surgery didn't have any experience or training in performing it. There were several complications that resulted in the patient being in a coma, undergoing a second heart surgery, and ultimately having a heart transplant.

The trial judge found, as a matter of law, that a physician's lack of experience or training is never material to a patient's decision to submit to a medical procedure.

When the case got to the Iowa Supreme Court on appeal, the majority of the high court said, "We disagree. The duty to disclose...turns on whether a reasonable person in the patient's position would consider the information...to be material. We have never categorically excluded a particular type of information, such as a physician's personal characteristics."

"In this case, multiple experts opined that the surgeon's lack of experience and training increased the odds of serious complications."

"A claim for informed consent does not depend on whether the physician performed the procedure negligently; rather, it turns on whether the physician failed to obtain consent by failing to disclose material information. Thus, evidence of a physician's training and experience could be relevant," the court held, adding that whether such information is material "will depend on the facts and circumstances of each case and will be for the jury to decide."

McConnell said that courts have held that negligent performance of a procedure is a separate issue from informed consent. He recalls a case of about 15 years ago. "A teenager had cystic fibrosis and was referred to a University of Virginia Medical School surgeon who was an expert in the field. He recommended surgery. The university is a teaching institution, so residents and fellows are usually involved, and that is stated clearly on the consent form."

"On the day of surgery, the attending surgeon and chief resident discussed the case. Then the attending left, and the boy was operated on by residents. A complication occurred, and the boy lost vision in his right eye. The surgery wasn't negligently performed."

"The boy's mother argued that if she had known that the surgeon to whom they'd been referred wouldn't be doing the procedure, she never would have agreed to the surgery," said McConnell. "The family has a right to know who's doing the operation. A jury found for the family and the defendants appealed, arguing that we had to prove negligence for there to be any recovery. An appeals court held that informed consent is separate. A reasonably prudent doctor should have disclosed the information. There's nothing radical or new about this. Iowa got it right."

The decision cited a 1996 Wisconsin case[2] as precedent. That case involved an operation to clip an aneurysm. The surgeon "failed to divulge the extent of his experience in performing this type of operation; failed to compare the morbidity and mortality rates...among experienced surgeons and inexperienced surgeons like himself, and failed to refer the patient to a tertiary care center staffed by physicians more experienced in performing the same surgery."

The Wisconsin Supreme Court held that all three facts were properly presented to a jury. It also noted that the plaintiff had dismissed the negligence claim before trial and that there was evidence the surgeon exaggerated his own prior experience while downplaying the risks confronting the plaintiff.

The Surgeon Met the Standard of Care

In the Iowa case, the dissenting justices favored the argument made by attorney Brian Kern. "The plaintiff's theory is that he should have been told about the surgeon's lack of experience because an inexperienced physician is more likely to make mistakes. That risk never materialized. The jury verdict establishes that the surgeon met the standard of care. We have never upheld a recovery under an informed-consent theory when the undisclosed risk did not occur and cause harm to the patient."

Justice Thomas Waterman noted, "I foresee that any patient with a bad outcome will now bring informed-consent claims that must go to the jury whenever the physician failed to disclose his or her specific experience and success rate on the procedure. This will further increase costs of healthcare burdening Iowans. The legislature can have the last word and should overrule this ill-advised decision."

One legal expert says that physicians' disclosure of experience is not necessarily required. Kate Strickler, general counsel for the Iowa Medical Society, said that because the court emphasized that cases will depend on the facts and circumstances of each case, "I interpret this to mean that the physician's experience or training may be required for informed consent, but the court declined to make such a disclosure a requirement in every case.... The ruling does not mean that the court has found that the failure to disclose violated the patient's rights; rather, it means that the jury should decide that question."

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