Medical Malpractice Cases Based on the Physician’s Failure to Obtain Informed Consent
By Attorney Eric J. Parker
One frequent source of medical and dental malpractice law suits is the failure of a treating physician or hospital to obtain “informed consent” from a patient prior to subjecting that patient to surgical or other invasive treatment. The document used by doctors and hospitals to obtain patient’s legal consent – commonly referred to as the “informed consent” form – typically addresses a wide range of potential complications associated with a particular procedure or treatment and is intended to inform the patient of the known risks associated with such treatment before obtaining their consent to proceed. While the process of obtaining a patient’s signature on an informed consent form may appear routine, the failure to obtain such consent, and in the inadequacy of many such forms are a frequent source of conflict in medical malpractice litigation.
To obtain true “informed” consent, as the law interprets that duty, a treatment provider should advise the patient of the known or “foreseeable” risks associated with a specific procedure, as well as those risks generally associated with a broad range of procedures falling under a common rubric. For example, patient battling obesity, who is considering undergoing stomach stapling, or bariatric surgery, should be presented with a document advising the patient of the known risks associated with stomach stapling, as well as the risks posed by virtually every kind of surgical procedure, which include the risk of infection, blood loss, heart attack, stroke, and death. Because the risk of death associated with surgery varies widely from one procedure to another, it is incumbent upon the patient and physician to sufficiently review all known risks in the context of the contemplated surgery or treatment, so as not to simply obtain consent from the patient, but to obtain the patient’s “informed” consent.
When a patient suffers an injury as a result of a medical complication not previously warned of, an issue arises as to whether the physician breached the duty owed to the patient to warn the patient of all known and reasonably foreseeable risks.
When faced with a medical malpractice case predicated on a failure to obtain a patient’s informed consent, the medical malpractice lawyer representing the patient must evaluate the case from a number of different angles. Because the patient – as the plaintiff – has the burden of proving that the harm suffered by the patient would not have occurred had the patient been sufficiently informed of the risks associated with a particular procedure, it is incumbent upon the patient’s attorney to demonstrate that alternatives to the treatment received by the patient, were both available and advisable under the attendant circumstances. Moreover, the plaintiff should be prepared to answer one of the most dispositive questions posed in “informed consent” cases: had the patient known of the specific risk, would she have declined the procedure? That many patients in such cases testify that they would not have agreed to the treatment had they been adequately advised of the risks, the prudent attorney (and client) should seriously evaluate how the plaintiff’s response is likely to be received by the jury. Where a patient was prepared to undergo the removal of a non-cancerous mole and had been advised of a range of known complications including possible nerve damage, infection, or death, is it likely that the patient would have declined the treatment had the list of complications included skin rash?
Take for example the case of a 31-year-old woman, faced with the prospect of undergoing radical mastectomy as treatment for metastatic breast cancer. The consent form provided by her surgeon includes, among a long list of potential complications, “limitation of movement of shoulder and swelling of the arm, loss of the skin of the chest requiring skin graft, failure to completely eradicate the malignancy, injury to major blood vessels, cardiac arrest, stroke, and death”. Following surgery, the patient awakens to find decreased sensation on the inner aspect of her arm and chest wall. The condition persists and is later determined to be a permanent result of the surgery. When the patient reviews her consent form, the stated risks include no mention of “decreased sensation or numbness of the inner aspect of the arm and chest wall” as a known risk. However, when compared with the consent forms used at other area hospitals, the complication suffered by the patient is clearly stated. While such a case may appear meritorious at first glance, the patient will undoubtedly be asked whether – hypothetically, she would have granted her consent had such a risk been included in her consent form.
While the injured plaintiff might well argue that she would not have undergone the mastectomy had she been faced with the risk of numbness of the inner aspect of her arm and chest wall, the jury will almost certainly be asked to consider whether it is reasonable to believe that patient would undergo radical mastectomy for the treatment of a life-threatening disease, willing to risk … “injury to major blood vessels, cardiac arrest, stroke and death”, but would not be willing to add the risk “decreased sensation or numbness of the inner aspect of the arm and chest wall” prior to granting her consent to the surgery.
Notwithstanding the technical challenge of convincing a jury that the undisclosed risk was the one risk upon which the patient’s consent was based, the obligation to counsel patients about all reasonably foreseeable risks when faced with a surgical procedure or other medical treatment cannot be overstated. Consumers of medical services have a right to know what a particular procedure involves, so as to best decide whether the attendant risks outweigh the stated benefits.
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About Attorney Eric J. Parker
Eric J. Parker is the Managing Partner and co-founder of the Boston-based trial firm Parker Scheer LLP, with offices in Massachusetts and Nevada. Mr. Parker has 20 years of active experience as one of Massachusetts’ leading civil trial lawyers and holds the highest peer-review rating awarded to any attorney for professional skill and ethics. Mr. Parker is a member of the American Association for Justice (formerly the Association of Trial Lawyers of America), as well as the American, Massachusetts, and Boston Bar Associations. Mr. Parker is an elected member of the American Board of Trial Advocates (ABOTA; Elected Vice President, Massachusetts Chapter, January 2007), and is a certified member of the Million Dollar Advocates Forum. In 2007, Mr. Parker was appointed to the Editorial Board of Massachusetts Lawyer Weekly, the leading weekly legal newspaper serving the Commonwealth of Massachusetts. Mr. Parker has been named a Massachusetts Super Lawyer by the publishers of Boston Magazine, every year since the distinction was first created. Mr. Parker’s legal practice focuses on plaintiff-oriented tort litigation, including product liability, motor vehicle tort, medical and dental malpractice, premises liability claims, workplace sexual harassment and assault, aviation-related injuries, and wrongful death. Mr. Parker is a graduate of Vassar College and received his Juris Doctor degree from Suffolk University Law School. In addition to his legal practice, Mr. Parker is also an FAA Certified Private Pilot, and was a founding member of the Board of Trustees of the Media And Technology Charter High School (MATCH) located in Boston (Chairman 2001-2005), the goal of which is to provide inner-city high school students with a successful college education.