There Are Limits on What a Physician Needs to Disclose to the Patient

It’s a common complaint that accompanies most allegations of medical malpractice: “My doctor did not tell me this might happen.” Or, after the fact, “If only my doctor had told me what went wrong, I could have accepted it.”

So long as there is contemporaneous documentation that the physician and patient discussed the risks, benefits, and complications of a proposed course of action, disputes over “lack of informed consent” are usually decided in favor of the physician. But what does a surgeon need to tell the patient after surgery?

Dr. OS is an orthopedic surgeon who saw a 40-year-old manufacturing worker for the gentleman’s basketball injury. The MRI revealed an anterior cruciate ligament tear and a tear of the anterior horn of the lateral meniscus. Home physical therapy did not help, so Dr. OS recommended surgery and documented his explanation to the patient of its risks and complications.

Dr. OS then performed an arthroscopic ACL reconstruction with patellar tendon graft and debridement of the intercondylar notch with notchplasty.

Post-operative X-rays revealed inadequate fixation of the femoral screw in the ACL graft. Because the patient was still under anesthesia, Dr. OS discussed this finding with the patient’s family and then returned the patient to surgery to place an additional screw. The original screw was left in place. New X-rays showed the original, distal, screw protruding from the cortex to the surrounding tissue.

Many months after the surgery, the hospital questioned Dr. OS on the screw placement and asked to see X-rays. For this inquiry, Dr. OS asked the patient back for new X-rays. Though the hospital board was ultimately satisfied with Dr. OS’s surgical judgment, it directed Dr. OS to answer the patient’s questions on the placement of the second screw. The patient then started complaining of pain to subsequent treating physicians and ultimately filed a complaint for malpractice against Dr. OS.

The patient’s attorney claimed that subsequent treaters told the patient that removal of the original screw was not recommended because of its closeness to an artery. When the patient’s attorney shared his expert’s written comments with Dr. OS’s claims specialist, however, there was no mention of actual negligence.

A consultant retained on Dr. OS’s behalf characterized the surgeon’s actions as completely defensible: Dr. OS performed the surgery properly and when he noticed instability, he corrected it appropriately. On informed consent, the consulting orthopedic surgeon said that proper consent with the patient is based on a general explanation of the surgery, not on the exact number of screws placed. Finally, should the original screw ever “back out,” then surgery with an assisting vascular surgeon would be called for, but it would not indicate negligence.

The seminal case on informed consent, Cobbs v. Grant, tells physicians that they need not engage the patient in “a lengthy polysyllabic discourse on all possible complications. A mini-course in medical science is not required; the patient is concerned with the risk of death or bodily harm, and problems of recuperation.”

To his credit, the patient’s attorney apparently applied Cobbs to the facts of his case and properly persuaded his client to dismiss the suit.

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