No Information? Then Probably No Consent

Obtaining a patient’s informed consent, when well documented and on-point to an ultimate adverse outcome, can be a great deterrent to a lawsuit. No doubt it is one of the first things a plaintiff’s attorney looks for when screening a client for a medical malpractice lawsuit.

Just as a thorough informed consent can derail a suit, all the technical skill of a physician or surgeon cannot overcome its absence. No matter what you or I would do when faced with a critical medical decision, the lack of a documented informed consent will always be argued in the patient’s favor in a malpractice trial.

At age 46, the patient was diagnosed with end-stage renal failure and within two years required dialysis three times weekly. Her three sisters’ renal disease ruled out a family donation.

After first being screened for the transplant program at a university hospital, the patient began treating with Dr. US, a urological surgeon, for further work-up to receive a kidney transplant .

Dr. US told the patient that because she was blood type B, her wait for a transplant might take three to four years. The patient acknowledged this and continued her care with Dr. US. Hepatitis antibody screening of the patient for hepatitis B core and surface were negative.

Some 18 months later, a blood-type B kidney became available from a 63-year-old man who died of an intracranial hemorrhage. The kidney was airlifted, biopsied and found satisfactory except that it was hepatitis B core positive.

After arriving at the hospital for the possible surgery, the patient learned from the nursing staff that she was third in line and would not likely receive the kidney. Just prior to leaving, however, the plaintiff was told that the kidney was indeed available. Dr. US transplanted the kidney into the patient.

Following surgery, the patient began a routine of steroid and immunosuppressants. Her liver functions remained normal until some two years later, at which time she fell ill with fever, chills, shingles and herpes. After an emergency room visit, plaintiff received a call from the county health department informing her that she was positive for hepatitis B.

The patient’s treating hepatologist told her that she likely acquired the hepatitis B infection from the kidney transplant. On this news, plaintiff sued Dr. US and claimed that she would not have elected to receive the transplant had she been informed the kidney was hepatitis B core positive. Because she also alleged that Dr. US purposely and intentionally withheld this information from her for his financial gain, the plaintiff included battery and fraud in her legal complaint.

Dr. US’s medical records for the patient were silent on telling her about the core infection and he had no specific recollection of discussing the issue. In fact, the medical literature at that time indicated very little evidence that hepatitis B core infection could transmit the B virus to a kidney donee.

Would the plaintiff have accepted the core-infected organ had she been advised of the small risk of infection? Would the fact that her sister died waiting for a kidney sway the jury to believe that the patient would have accepted the risk of the infected organ—or could the patient use that fact to show her resolve to wait for a clean organ?

Given the great weight the law allows patients in such circumstances, the case was resolved informally before trial.

Given adequate explanation, patients may accept a variety of severe risks. Detailed chart notations of the doctor’s discussion of those risks are essential if there is ever a need to defend against an eventual lawsuit.

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