Evidence of Informed Consent Is Always – ALWAYS – Helpful

This column has frequently described how a detailed – and documented -- informed consent discussion can make a clear difference in defending a malpractice claim. A case from a few years back shows how important any evidence of informed consent can be.

A 38-year-old dental hygienist visited Dr. OS, an orthopedic surgeon, with complaints of swelling and pain in both her wrists. Based on history and physical examination, Dr. OS formed the impression of bilateral carpal tunnel syndrome, a finding that was confirmed by a neurologist. On her return to Dr. OS, the two discussed the options of conservative treatment versus surgery. Based on the nature of the pain and discomfort, coupled with positive nerve conduction results on the right wrist, Dr. OS recommended an endoscopic bilateral carpel tunnel release and exploration of a right forearm mass. The patient’s workers compensation carrier authorized the surgery.

In his notes on the physical examination, Dr. OS documented “the possibility of nerve damage, the possibility for future surgery . . . have been explained and accepted.”

Dr. OS performed the endoscopic release and exploration and believed that the surgery went without complication. Some three weeks after surgery, however, the patient complained of numbness and pain in her right wrist and hand. Dr. OS told the patient that the symptoms could have been caused by a stretching of a nerve during the procedure and that they should go away. When the problems persisted one month after surgery – and a new motor nerve conduction study that was worse – Dr. OS recommended an open surgery to repair the ulnar nerve. That open procedure revealed a 1 cm. gap in the ulnar nerve which appeared to be the result of the first surgery. Dr. OS repaired the ulnar nerve and also decompressed the same nerve at the elbow. Again, Dr. OS believed that there were no complications.

The patient’s condition failed to improve and her workers’ compensation carrier arranged for an examination by another specialist. That exam revealed normal motor and sensory functions of the ulnar nerve, leading the specialist to the opinion that the patient suffered from reflex sympathetic dystrophy. After several more visits to Dr. OS, the patient asked her carrier to send her to another treating orthopedic surgeon. That surgeon concluded that the patient suffered from “sympathetic dystrophy secondary to the endoscopic and nerve repair procedures.”

When further treatment proved unsatisfactory, the patient filed a lawsuit against Dr. OS for transecting the ulnar nerve. The claim was moved from the courthouse to arbitration pursuant to a physician-patient arbitration agreement executed by Dr. OS and the patient prior to the first surgery.

At the arbitration, the patient’s attorney concentrated on lack of informed consent: Despite Dr. OS’s chart notes, the patient told the arbitrators the she and Dr. OS did not discuss nerve damage prior to the endoscopic surgery. Her testimony was undermined, however, by her signed hospital consent-to-surgery form that specifically warned: “Do not sign this permit if the possible risks and complications have not been explained fully to your satisfaction.”

In the end, the arbitrators ruled unanimously in favor of Dr. OS – once again proving the power of informed consent in defending a medical malpractice claim.

Gordon Ownby is general counsel at CAP-MPT.Comments on Case of the Month should be directed to gownby@cap-mpt.com