Posts Tagged ‘informed consent’

“Informed Consent” Duty Not Satisfied When Doctor Lies


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.

Decision To Forego Surgery Also Requires Patient Consent

JULY 26, 1999 VOLUME 7, NUMBER 4

Jean Matthies was eighty-one years old when she fell and broke her hip. She had been living alone in her apartment in Union City, New Jersey, and had been quite independent. She did her own shopping, cooking and housecleaning. But with a fractured hip, she could not even summon help; she lay undiscovered in her apartment for two days. When she was transported to a local hospital emergency room, she was deyhdrated and confused.

Dr. Edward Mastromonaco was the orthopedic surgeon called in on Ms. Matthies’ case. He considered her condition, medical history and x-rays, and decided not to undertake surgery for her broken hip. Instead, he prescribed what he called a “bed rest treatment.” Ms. Matthies was confined to her hospital bed for several days, followed by increasing periods in a chair and being assisted to walk around her hospital room.

There were several reasons Dr. Mastromonaco gave for deciding against the surgical alternative. He later testified that she was elderly, frail and in a weakened condition. She had, forty years earlier, suffered a stroke which left her partially paralyzed on her right side, and made her use her right leg as a “post,” pushing herself forward with her left leg. Besides, she suffered from osteoporosis, and Dr. Mastromonaco decided that her bones might be too porous to hold the surgical screws; if they weakened, she would later require hip replacement surgery.

Dr. Mastromonaco made his decision at least partly on the basis that he thought Ms. Matthies should not continue to live alone. In explaining his position later, he told the court that “I’m not going to give her that leg she wanted. She wanted to live alone, but she couldn’t live alone. . . . I wanted her to be at peace with herself in the confines of professional care, somebody to care for her. She could not live alone.”

Dr. Mastromonaco’s vision of what should happen with Ms. Matthies came to pass precisely as he suggested. After a short period of bed rest her right femur displaced, leaving her right leg shorter than her left. She never regained the ability to walk, and she now lives in a residential care facility.

Ms. Matthies sued Dr. Mastromonaco for medical malpractice, alleging both medical malpractice and a violation of principles of informed consent. She argued that Dr. Mastromonaco should have disclosed the surgical alternative and discussed the choices with her, rather than deciding on the “bed rest treatment” on his own.

Dr. Mastromonaco argued that there is not duty to secure informed consent to a non-invasive medical procedure, and the trial court agreed with him. The New Jersey Court of Appeals and the New Jersey Supreme Court did not, and reversed the award in favor of Dr. Mastromonaco.

“Choosing among medically reasonable treatment alternatives is a shared responsibility of physicians and patients,” wrote the court. “To discharge their responsibilities, patients should provide their physicians with the information necessary for them to make diagnoses and determine courses of treatment. Physicians, in turn, have a duty to evaluate the relevant information and disclose all courses of treatment that are medically reasonable under the circumstances. … [T]he ultimate decision is for the patient.” Dr. Mastromonaco must now show that he discharged his duty to adequately inform Ms. Matthies of her choices, both surgical and non-surgical. Matthies v. Mastromonaco, July 8, 1999.

Indictment of Fiduciary


From The Tucson Citizen, February 14, 1994

“A grand jury has indicted a Sun City lawyer on charges accusing him of stealing from a client’s estate.

David John Mason is scheduled to be arraigned … on five counts of theft.

It is the second indictment in the past seven months for Mason, 45.

On Aug. 23, he was indicted on a charge of fraud that accused him of stealing more than $140,000 from a dead woman’s estate and spending the money on taxes, landscaping and a 1966 Mustang convertible.

The latest indictment … accuses Mason of looting the estate of Mary Jane Luchetta, 53, who lives in a Phoenix-area nursing home.

Investigators for the Maricopa County Attorney’s Office allege Mason stole $80,250 from September 1989 to October 1992 by writing check from bank trust accounts set up for Luchetta.

Craig Mehrens, an attorney for Mason, said he could not comment yesterday on his client’s latest indictment because he hasn’t seen it.

Mason is free on bail.

The state Supreme Court on June 9 suspended Mason from practicing law pending the outcome of unspecified disciplinary charges against him.”

Other Recent Cases

The Mason case is just one of several similar cases in the past two years. A Tucson man was indicted in 1992 for his actions while serving as a fiduciary for several elderly Tucsonans, including one nursing home resident.

More recently, two Phoenix-area men were indicted after a Phoenix New Times article detailed a series of alleged misappropriations of funds from the estates of a number of elderly residents. One man was conservator for each of the alleged victims, and the other was his attorney in each case.

A Tucson attorney was indicted just last month for allegedly having taken her own mother’s funds using a power of attorney. And a Sierra Vista couple were the victims of another alleged series of thefts at the hands of their conservators, one of whom was their child.

These cases point out the importance of careful selection of fiduciaries, and monitoring of their behavior. While some of the alleged thefts were by family members, two were by professional fiduciaries and three by attorneys. While most professional fiduciaries and attorneys are honest, careful selection is clearly required for the elderly who must rely on someone else to handle financial matters.

Q & A

Q: An elderly woman has been admitted to a nursing home with a terminal condition. Her family has told her that her stay is temporary, and has instructed the facility not to tell her about her condition or prognosis. What should the facility do?

A: Both the facility and the family need to remember that the patient should be in control of her care. If she is competent, her consent to the admission and her treatment must be “informed.” That requires that she be given all relevant information. Even if family members hold a power of attorney, she still has the power to make decisions, and must be consulted.

If the patient is not competent, her guardian has the legal power to make decisions without consulting her. Nonetheless, he should exercise that power sparingly, if at all.

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