Informed Consent vs. Medical Negligence
The Iowa Supreme Court recently decided that it is a factual question under the informed consent doctrine as to whether surgeons need to disclose their experience to patients prior to performing surgeries. The Court therefore leaves it to juries to determine if a surgeon’s experience is relevant in an “informed consent” analysis. In Iowa, if a jury now finds it reasonable for a physician to disclose inexperience, the physician could be liable for damages - even if the surgery was performed within accepted medical standards.
In fact, in Andersen v. Khanna, the surgeon was found not to have committed negligence. Nevertheless, the majority created a whole new area of liability by misplacing “experience” under the informed consent doctrine.
The dissent rightly held that experience should be considered in the context of a negligence assessment, not an informed consent one.
Consider a pilot who is flying cross-country for the first time. The flight takes off, and it lands. The pilot operated the plane within all accepted standards. But the turbulence was particularly bad that day, and a passenger became ill. If that passenger brings a lawsuit against the pilot, what is the relevance of the pilot’s inexperience? Should he have a duty to disclose to each passenger that he had not flown cross-country before?
No. The airline should ensure that pilots are sufficiently trained in flying generally. And the pilot should have a competent co-pilot and a comprehensive plan that she is comfortable and capable to execute.
A deficiency in any of the above clearly opens the door for a negligence case. It should not, however, open the door to a “lack of informed consent” argument. A jury that finds no negligence should not then be tasked with deciding what details might have been relevant to disclose to a passenger, or to a patient. Doing so essentially amounts to double jeopardy.
In healthcare, a hospital or a facility is responsible for credentialing a surgeon for specific procedures. If it was negligent in doing so, it has liability. Surgeons should have competent staff around them and, if necessary, co-surgeons. They should also have a medically acceptable plan that is within their skill set to execute.
A departure from these duties is known as a breach. If a breach is found, there is a test to determine whether that breach caused harm to a patient. If this nexus is established, then a jury must decide on how much in “damages” to award. This all occurs under the long-established tort theory of “negligence.”
Notably, patients are always entitled to ask physicians about their experience and are always entitled to receive truthful answers. Dishonest answers are addressed under fraud laws and through licensing actions.
Informed consent relates specifically to whether a patient was given sufficient information regarding the risks, benefits and alternatives to a procedure. The “risks” should be disclosed in a proper consent form, which patients sign as an acknowledgement of same. By ruling that experience might be relevant to include in this document - depending on the jury - the Iowa Supreme Court has imposed an infinite and unpredictable duty on healthcare providers.
What other questions regarding experience now become necessary to disclose before operating in Iowa? What if a surgeon got bad grades in medical school or failed a board examination? What if he or she was sued for a similar procedure in the past? What if the facility only received three out of five stars in a recent patient satisfaction survey?
Many factors can be important and relevant to a patient when deciding on whether to undergo a surgical procedure and who should perform it. Informed consent, however, should relate only to the options available to patients, and the risks and benefits of each.
Brian S. Kern, JD, Founder
Toro Risk Consulting Group, LLC | Bullish on the future of healthcare