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Make Sure Your Doctor Explains the Risks of a Procedure BEFORE You Are in the Operating Room.

Written by: Patricia I. James**

This post addresses a scene in the second episode of “Monday Mornings” (See Post #25). Again, it involved peer review known as “Morbidity and Mortality” and dealt with consenting a patient.

Neurosurgeon Tina Ridgeway, M.D. was invited to the podium to discuss the file of patient Francine Cash. Ms. Cash had a tumor on the brain and underwent an operation. Dr. Ridgeway said that the “procedure seemingly went well with no incident.” The Chief Surgeon, Dr. Hooten, pounced on the word “seemingly.” He asked Dr. Ridgeway about the risks of surgery. She said that the risks were bleeding, infection, stroke and possible damage to olfactory nerve (pertaining to the sense of smell) which ran proximate to the growth. If the nerve was nicked or cut, Ms. Cash could lose her sense of smell.

The focus of the scene was on Dr. Hooten criticizing Dr. Ridgeway for handing over the duty of consent as well as the operation to a resident, Dr. Robidaux. Dr. Robidaux had assisted on operations but had never done one by herself.

However, the emphasis for this post is on the consent, Ms. Cash was a chef, “was” being the operative word. No pun intended. A chef would need a sense of smell. Dr. Hooten said, “ 99 out of 100 patients would dismiss the potential side effects without a second thought compared to a tumor growing in his or her brain. That loss of smell would, I suspect, mean very little. But when dealing with a patient whose olfactory nerve is inextricably linked with who she is, then perhaps the surgeon would do best to go over those risks personally with the patient instead of turfing the duty to a resident. Perhaps that surgeon might even do the procedure instead of handing the scalpel to a doctor in training who has never performed it before.”

As it were, by the look on Dr. Robidaux’ face, it appears that she did fail to tell Ms. Cash of the risk to her sense of smell.

So, let’s start with the boring part and then we can get to the interesting stuff.

CACI 532 (FN1) sets forth the definition of “informed consent.” This jury instruction includes brackets where you [inset type of medical practitioner]. In keeping with the spirit of “Monday Mornings,” I’ll edit this to state “neurosurgeon.”

“A patient’s consent to a medical procedure must be “informed.” A patient gives an “informed consent” only after the neurosurgeon has fully explained the proposed treatment or procedure.

“A neurosurgeon must explain the likelihood of success and the risks of agreeing to a medical procedure in language that the patient can understand. A neurosurgeon must give the patient as much information as he or she needs to make an informed decision, including any risk that a reasonable person would consider important in deciding to have the proposed treatment or procedure, and any other information skilled practitioners would disclose to the patient under the same or similar circumstances. The patient must be told about any risk of death or serious injury or significant potential complications that may occur if the procedure is performed. A neurosurgeon is not required to explain minor risks that are not likely to occur.”

CACI 533 explains what has to be proved in order to establish a cause of action for the failure to obtain informed consent (commonly referred to as “Lack of Informed Consent.”) (The jury instruction should normally be edited to insert the names of the plaintiff and defendant. However, I am going to be generic).

“Plaintiff claims that the neurosurgeon was negligent because she performed an operation on plaintiff without first obtaining her informed consent. To establish this claim, plaintiff must prove all of the following:

1. That the neurosurgeon performed an operation on plaintiff;

2. That plaintiff did not give her informed consent for the operation;

3. That a reasonable person in plaintiff’s position would not have agreed to the operation if she had been fully informed of the results and risks and alternatives to the procedure; and

4. That plaintiff was harmed by a result or risk that the neurosurgeon should have explained before the operation was performed.”

Historically, I have found that doctors have a patient sign a consent form. Simply put, they tend to be boiler-plate with language along the lines of “the doctor has explained the risks of this procedure to me” without specifically including what those risks were. Thus, we end up with a “he said, she said” scenario where the plaintiff will say something like, “Yeah, but he did not explain THIS risk to me.”

This reminds me of the drug commercials on television. After singing its praises, the commercial will inevitably go on to say, “and do not take this drug if you have a history of liver disease, heart palpitations, bronchitis, blah, blah, blah and contact your doctor if you develop these symptoms: shortness of breath, nausea, stomach pain, blah, blah, blah. Why don’t they just go ahead and say, “Do not take this medication if you blink or breathe?”

Lately, I have been coming across consents that are written on the operative report rather than a separate document signed by the patient. In other words, it appears that the doctor has waited until the patient is in the operating room before explaining the risks of the operation.

Does this make sense to you? You are in the operating room, already in a gown and the anesthesiologist is waiting to put you under. An operation is a serious event. If you are not nervous, you must already be on drugs. (I knew a doctor who was going to undergo surgery. HE was nervous. He told me that, being under general anesthesia, was as close as you were going to get to dying without actually dying).

At that point, are you seriously able to consider the pros and cons of the operation? Are you going to get up, pull out the IV if it is already started and say, “Nope, not going through with this one,” and walk out of the operating room? Scenes we’d like to see in Mad Magazine.

It is not enough to say, “I would not have consented.” The test is whether a “reasonable person in plaintiff’s position would have refused consent if he or she had been fully informed.” Cobbs v. Grant (1972) 8 Cal.3d 229, 245. (FN2). The reasoning behind this is that a plaintiff could always say, after the fact, “I would not have consented.” Therefore, the standard is whether a “reasonable person” in plaintiff’s position would not have consented.

Conversely, an affirmative defense a doctor can raise is proof that “this particular plaintiff” still would have consented even if properly informed. Warren v. Schecter (1997) 57 Cal.App.4th, 1189, 1206. (FN3).

Now, to bring this back to “Monday Mornings,” the issue was “what was material information to this patient?” The courts have defined “material information” as follows: Material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the recommended medical procedure. To be material, a fact must also be one which is not commonly appreciated. If the physician knows or should know of a patient’s unique concerns or lack of familiarity with medical procedures, this may expand the scope of required disclosure.” Truman v. Thomas (1980) 27 Cal.3d 285, 291, internal citations omitted.

Question: Dr. Hooten said that “99 out of 100 patients would dismiss the potential side effects without a second thought compared to a tumor growing in his or her brain. That loss of smell would, I suspect, mean very little.” Wouldn’t that mean that Ms. Cash would lose a lawsuit based on lack of informed consent? Since 99 out of 100 patients would consent to it, wouldn’t that be the “reasonable person?”

Answer: Not necessarily because it is a “reasonable person in plaintiff’s position” that would be the standard. Her position or status was working as a chef. As edited for this scene, CACI 533 would read as follows:

“Francine Cash claims that Michelle Robidaux, M.D. was negligent because she performed an operation on Ms. Cash without first obtaining her informed consent. To establish this claim, Ms. Cash must prove all of the following:

1. That Dr. Robidaux performed an operation on Ms. Cash;

2. That Ms. Cash did not give her informed consent for the operation;

3. That a reasonable person in Ms. Cash’s position, someone whose livelihood was as a chef, would not have agreed to the operation if she had been fully informed of the results and risks and alternatives to the procedure; and

4. That Ms. Cash was harmed by a result or risk that Dr. Robidaux should have explained before the operation was performed.”

Now, defense counsel would argue about inserting the phrase, “someone whose livelihood was as a chef,” since they would say that the jury instruction would be slanted in favor of Ms. Cash. However, that is the judge’s call.

The lesson to be learned in Post #8 was, ask for the results of your medical tests. In this post, the lesson to be learned is to ask what the risks are, particularly those which are pertinent to your work. For example, if you are a song writer or piano tuner, you might ask if it will affect your hearing. (Yes, I know all about Beethoven but I think he was an exception). If you are a truck driver or painter of landscapes or portraits, you might ask if it will affect your eyesight. If you wash windows on high-rise buildings or do a high-wire act, you might ask if the procedure will affect your sense of balance.

In sum, as I said in Post #8, take charge of your healthcare.

                                                                                                                                

FN1: CACI are California civil jury instructions.

FN2: This is a case that was before the California Supreme Court (Cal.3d). The opinion was rendered in 1972. Simply put, in California, a case starts out in the Superior Court, can be appealed to the California Court of Appeal and then appealed to the California Supreme Court.

FN3: This case was before the California Court of Appeal (Cal.App.4th).

**No portion of this Post is intended to constitute legal or medical advice. The views expressed are solely those of the author.