“Informed Consent” Duty Not Satisfied When Doctor Lies

OCTOBER 11, 1999 VOLUME 7, NUMBER 15

Before undertaking any medical procedure, physicians are required to obtain the consent of the patient (except in some limited circumstances, such as medical emergencies). Under American law, it is not enough to simply get the patient’s consent, however. The consent must be “informed”—in other words, the patient must be given sufficient information to evaluate the physician’s recommendations and intelligently give or withhold consent.

Informed consent requires that the patient be given information about the risk of the proposed treatment, the likelihood of success, the available alternatives and the likely result of taking no action. In fact, informed consent requires the physician to provide all the information a reasonable patient would use to evaluate the proposed treatment.

Cloma Duttry thought she was being a good medical consumer when she asked her doctor questions about a proposed operation. The Pennsylvania woman suffered from esophageal cancer. Dr. Lewis T. Patterson, her physician, recommended surgery. Before giving consent, she asked how experienced Dr. Patterson was with this particular kind of procedure. When she asked him how many times he had performed similar surgery, he assured her that he had done the same kind of operation about once a month over a five-year period. In fact, Dr. Patterson had only performed similar surgery five times in the five years before he operated on Mrs. Duttry.

After the surgery Mrs. Duttry developed complications. The surgical site developed a leak which required emergency surgery; later Mrs. Duttry developed Adult Respiratory Disease Syndrome and was unable to continue to work.

Mrs. Duttry sued Dr. Patterson; since Dr. Patterson withheld important information, she argued, her consent was not “informed,” and Dr. Patterson did not have authority to operate. After a trial, the Pennsylvania trial court disagreed and found in favor of Dr. Patterson.

Mrs. Duttry appealed the verdict. She argued that the doctor’s prior experience is important information. Dr. Patterson, on the other hand, argued that there is no requirement that a doctor disclose his or her familiarity with a specific procedure.

The Pennsylvania Superior Court agreed with Mrs. Duttry. By a 2-1 vote, the judges decided that when a patient asks about her doctor’s experience it indicates that the level of expertise is important to that patient in analyzing her choices.

The dissenting judge, like the lower court, pointed to an earlier Pennsylvania case involving the death of a young man. In that earlier case, the doctor who performed the operation was an alcoholic who was not licensed to practice medicine in Pennsylvania; the court nonetheless refused to require disclosure of those facts, saying that such information is personal to the physician and not “germane to surgical or operative treatment.”

The two-member majority in Ms. Duttry’s case disagreed. They noted that a physician must “advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person would consider significant in deciding whether to have the operation.” The mere fact that Mrs. Duttry had asked the question indicated that she thought the Doctor’s experience was a material fact. The case was returned to the trial court so Mrs. Duttry could put on her evidence. Duttry v. Patterson, October 5, 1999.

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