CAPsules Editions / Articles

COMMUNICATING HAZARDS OF TREATMENT DECISIONS
by Georgia McCullough, RN, JD.
CAP Claims Specialist

"I didn’t want to scare my patient." (Nephrologist’s explanation for not informing his non-compliant patient that the ultrasound’s purpose was to rule out cancer – paid $380,000 to resolve).

“It is impossible to tell the patient all the risks anyway.” (Gynecologist’s
explanation for not explaining why she recommended a CT scan, that the
patient later refused - paid $450,000).

“I stopped recommending the tests because I knew this patient always
refused. “ (Family Practitioner, who who gave up on a non-compliant patient - paid $350,000).

“I’m sure she knew – I know we talked about it.” But the patient’s chart was
devoid of any documentation that the conversation ever occurred.

Such excuses are offered frequently, but you have to question their utility. The
above actual results tend to confirm that “doctors who try to be nice to patients”
may still be sued. Some physicians fail to share vital information under a
misguided belief that shielding their patients from “scary” news is a matter
of professional discretion. Well, it’s not! A careful practitioner will avoid making
any assumptions about a patient’s need for information about risks.

When a physician assumes that such an explanation is not necessary, the
physician has effectively made a choice for the patient. Not explaining the hazards associated with refusal of a recommended test or treatment simply
decreases the patient’s opportunity to make an intelligent choice and certainly
an informed one. Moreover, withholding such important information may violate
California’s informed consent/informed refusal disclosure laws.

By design, an “informed refusal” argument involves double negatives, so it is a slippery concept. However, the concept of informed refusal becomes crystal clear when a patient untangles the refusal and generates its corollary, i.e., a positive declaration: “Had I been informed of the risk of [blank], of course I would have followed my doctor’s orders.”

The clear meaning of such a positive declaration illustrates why disclosure is
essential and allows a patient to make an informed decision to accept or refuse
your recommended care. Such clear, simple logic is unlikely to be lost on a jury or arbitrator. The following points can improve physicians’ understanding of the law governing “informed refusal” and empower doctors to protect both patients and themselves.

Patients Generally Lack Knowledge About the Risks

The risk of informed refusal concerns what a physician has not disclosed. Stated differently, the doctor deliberately chose not to bring up the specific risk. A physician knows the risks and can explain them, if he/she chooses. But, a patient probably remains ignorant of the risks unless they are explained. Thus, there is a disparity, and a resulting dependency, regarding disclosure of information. California courts base the concept of informed consent/informed refusal on this precise information disparity, concluding that: “[P]atients are generally persons unlearned in the medical sciences and therefore, except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity.”1

The law says: “[T]he decision to not undergo treatment is vested in the party most affected - the patient.”2   The patient’s right of self-decision is the measure of the physician’s duty to reveal. That right can be effectively exercised only if the patient possesses adequate information to enable an intelligent choice. The scope of the physician’s communication to the patient, then, must be measured by the patient’s need, and that need is whatever information is material to the decision.

Material Information

“Material” information is information 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 to reject, the diagnostic test, surgery, or procedure. To be “material” a fact must also be one which is not commonly appreciated.

Dr. Claude R. Thomas, a family physician, treated Rena Truman over a six-year period.3  After her death at age 30 from cervical cancer, Rena’s surviving children sued the doctor for negligence. The issue was whether Rena was given an adequate opportunity to make an informed decision about whether to refuse a pap smear test.

Dr. Thomas testified that, on several occasions, he recommended that Rena have a pap smear test, but she repeatedly refused. Rena felt she couldn’t afford the costs of annual pap smears. Significantly, Dr. Thomas’ medical records made no references to any such discussions or recommendations. Dr. Thomas admitted that he never told her why the test was necessary or what purpose the pap smear tests served. Nor did he disclose any specific risks (i.e., undetected cervical cancer) if she failed to undergo the pap smear test. Because the doctor did not disclose the hazard of not complying with his recommendation, Mrs. Truman was prevented from making an informed refusal.

The California Supreme Court concluded that Dr. Thomas may have breached his duty of care when he failed to inform Rena of the potentially fatal consequences of failing to undergo a pap smear test. Dr. Thomas knew that the potential harm of failing to detect cervical cancer at an early stage was death. The risk of cancer was the principal reason why Dr. Thomas recommended that she undergo annual pap smears.

Disclosure of Risk of Refusal

To summarize, a physician may be reluctant to say “screen for cancer” because it seems too early. The doctor may believe that scaring the patient in order to obtain compliance is unnecessary. But the physician’s duty to disclose both the risks and benefits of the procedure and the hazard of refusal is still compelled by law. The number of patients whose conditions are so fragile that they cannot bear to hear the purpose of a screening or diagnostic exam is probably very small. On the other hand, courts are adamant that patients have a legal right to consider all the possible consequences of the medical choices offered to them, including probable consequences of refusing. One way to think about this is: If your patient cannot shoulder responsibility for his choices now, how likely is he to take full responsibly for his choices after something goes wrong?

1 Cobbs v. Grant (1972) 8 Cal.3d 229, 242, 501 P.2d 1, 104 Cal.Rptr. 505.
2 Id. at 245.
3 Truman v. Thomas (1980) 27 Cal.3d 285, 611 P.2d 902, 165 Cal.Rptr. 30

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