Informed Consent: Don't Bother With That Suit

The doctrine of "informed consent" presents both obstacles and benefits in the defense of medical liability cases.

By claiming lack of informed consent, a plaintiff may take a claim all the way to a jury even without an expert declaring that the physician's actual treatment was negligent.

The flip side to informed consent is the powerful effect a detailed and documented informed consent discussion can have on a plaintiff's attorney who is considering whether to pursue a lawsuit. In one recent case, a detailed informed consent was instrumental in dissuading an attorney from proceeding with a suit.

Patient, a 73-year-old male, first saw Dr. S, a neurosurgeon, for "stiffness" in his legs over six months. Neurological exam and X-rays confirmed cord compression at C 3-4.

Returning five weeks later, the patient still had gait problems. Dr. S told the patient he felt he would benefit from surgery. On the signed consent form, Dr. S described the surgery as "Anterior cervical disk excision and fusion, C 3-4 with internal fixation and banked bone. Posterior C 2,3,4 laminectomy." Below, Dr. S described the surgery in common terms: "Removal of "cushion" between the bones and replacement with a bone graft and fixation with plates and screws. Removal of the coverings of vertebrae (lamina) to decompress the spinal cord."

The consent form, penned by Dr. S's office manager in clear, large lettering, detailed the risks and possible complications of the procedure: "Persistent pain in neck and/or arms, weakness and/or stiffness in legs, infection, paralysis from neck down, blood clots in legs necessitating medicine and/or surgery, hoarseness, difficulty swallowing, stroke, removal of plate, weakness and/or numbness in arms."

Finally, in the area of the consent form describing alternate methods of treatment, Dr. S had his office manager write: "Live with the pain." Dr. S performed surgery and noted no complications. The patient did have some post-operative problems, including a hematoma, slight aspirate pneumonia, hypertension and respiratory distress requiring reintubation. Following extubation, the patient had hoarseness and difficulty swallowing.

One year later, a 90-day notice written by an attorney advised Dr. S of the patient's intent to file a lawsuit. According to the attorney, suit would contend that the patient did not consent to the procedures performed and that as a result of the surgery, the patient suffered "decreased movement in his neck with increased neck pain, atrial arrhythmia, flutter and fibrillation, compromised speech abilities, and potential myocardial infarction."

The patient in fact filed the suit, but did so in pro per, that is, without an attorney of record. Later, the patient told Dr. S's MPT-assigned defense attorney that the case was being reviewed by another attorney.

When Dr. S's defense attorney spoke with the patient's second attorney, it became clear that Dr. S's detailed and documented informed consent would be a considerable hurdle for plaintiff to clear. Within a short time thereafter, plaintiff dropped the suit.

Many meritless cases take months or years to resolve. This one did not. The care taken by Dr. S in documenting the informed consent may well have made the difference.

Gordon Ownby is CAP-MPT’s General Counsel.