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Doctors Liability: When and to what extent?
When I read
about the doctors Liability and its extent I come across this sentence “consent
given only for a diagnostic procedure, cannot be considered as consent for
therapeutic treatment.” The fact that the authorized additional surgery is
beneficial to the patient, or that it would save considerable time and expense
to the patient, or would relieve the patient from the pain and suffering in
future are no grounds for defense here. In case it was to save life only then it’s
an exception.
A common consent maybe taken where such an issue or doubt rises. There
can also be a common consent for a particular surgical procedure and an
additional or further procedure that may become necessary during the course of
surgery
It is a well-accepted and established principle in Law that, every
patient has a right to be adequately informed of his medical condition, and the
same has been encoded in all rules guiding to medical ethics and medical
practice. In moral philosophy this principle is commonly grounded in the
principle of autonomy, whereas in law the patient's right to be adequately
informed is asserted through requirements of informed consent.
York Hospital[1], Respondent it was held that “Every human being of adult years and
sound mind has a right to determine what shall be done with his own body; and a
surgeon who performs an operation without his patient's consent commits an
assault for which he is liable in damages. This is true except in cases of
emergency where the patient is unconscious and where it is necessary to operate
before consent can be obtained.”
A second case of NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
ORIGINAL PETITION NO. 171 OF 1997
1. Smt. Narangiben Subodhchandra Shah
Through her
LRs/Complainants No. 2 to 4
2. Vipul Subodhchandra Shah
3. Bhavik Subodhchandra Shah
4. Manish Subodhchandra Shah
All residing
at 4, Rang Varsha Society
Opp. Bhagat
Baug
New Sharda
Mandir Road, Paldi
Ahmedabad-380007 … Complainants
Versus
1. Gujarat Research and Medical
Institute
Popularly
known as Rajasthan Hospital
Camp Road,
Shahi Baug
Ahmedabad-380004
2. Dr. Tushar J. Shah
405, Shefali
Centre, Paldi
Ahmedabad-380006
3. Dr. Sharad H. Dave
Having
office at ‘Mahakant”
Opp. V.S.
Hospital, Elisbridge
Ahmedabad-380006
4. Dr. Kirit C. Shah
Residing at
Dasaporward Society, Paldi
Ahmedabad-380006 … Opposite
Parties
Case summary : This complaint, alleging adoption of totally unethical practice to
convert a reference for angiography to coronary by-pass surgery which was not
so indicated without any diagnostic support and that too without obtaining any
written consent of either the deceased Subodhchandra Shah or any of his family
member, has been filed by the legal representatives of the deceased against the
Gujarat Research & Medical Institute, popularly known as ‘Rajasthan
Hospital’ (to be referred as such hereafter) and three doctors
The say of the complainants is that
their 58 years old father Subodhchandra Shah, a businessman, who was otherwise
quite hale and hearty, was under the care and supervision of opposite parties
no. 3 and 4 in Prerna Hospital when on the 6th of August, 1996
the doctors advised to have an angiography done. There being no cath
lab in Prerna Hospital, they advised the transfer of the patient to Rajasthan
Hospital, where he was admitted the same evening at about 9.00
p.m. Learned counsel for the complainants has emphatically argued
that the transfer of the patient was for the purpose of undergoing angiography
but rather than confining themselves to the conduct of angiography and
apprising the complainants with the outcome of the angiogram, in a
pre-meditated manner they conducted a CABG i.e. by-pass surgery on the patient,
for which no consent either of the patient or his relatives was
obtained. Contending that the whole operation was conducted in a
hush hush manner, it has been argued that neither they nor anyone of their
relatives were ever given any information with regard to the progress of the
operation.
Only after an expert opinion this case
was closed
The expert opinion of
Professor K.K. Talwar, an eminent Cardiologist of AIIMS, who, after scrutiny of
the entire medical records of the case, has opined that on the basis of the angiographic
finding the CABG was indicated in the case. His opinion being
relevant is extracted as under:-
“The angiography reel
of pt Subodhbhari P. Shah and his records were examined.
1. The angiography reel provided mentions
the patients name as S.P. Shah dated 7.8.96 and performed by Dr. S.H. Dave at
GRMI, Abad. The patient has triple vessel disease with significant
obstructive coronary artery disease (involving the left anterior descending
artery, left circumflex and right coronary artery and their branches) along
with mild left ventricular dysfunction.
2. As per records the patient had unstable
angina and subsequently was advised coronary angiography. The
angiogram revealed triple vessel disease with left ventricular
dysfunction. As per records patient has angina during the angiogram
and was subsequently taken up for emergency coronary artery bypass
surgery. As for the angiographic finding the CABG is indicated in
such a case.”
The criteria for determining the
adequacy of information disclosed to a patient has long been the subject of
intense legal debate. In recent case law, the adequacy of disclosure has been
judged increasingly by the degree to which it meets the informational needs of
the so-called reasonable person. To bring a successful suit against a
doctor, you must prove not only that he failed to disclose some pertinent
information, but also that you suffered some injury as a consequence of that
failure.
- If your doctor does not tell you
of some serious risk of a surgery, but you undergo the procedure without
complications, you cannot sue the doctor because you have not suffered any
harm.
- If you undergo the surgery and
suffer from a harm you were not informed of, you probably can sue, unless
there is evidence that you would have gone through with the surgery even
if you had known the risk. If you would have gone through with the
surgery even with the disclosure, you cannot claim that the doctor's
failure to disclose caused your harm.
What is Medical Malpractice?
Professional negligence
is defined as the breach of a duty caused by the omission to do something which
a reasonable man guided by those considerations which ordinarily regulate the
conduct of human affairs would do or doing something which a prudent and
reasonable man would not do. Further malpractice is defined as lack of
reasonable care and skill or willful negligence on the part of a doctor in the
treatment of a patient whereby the health or life of a patient is
endangered.
Today is the world of
information the gadgets hold everything
no medical term will sound crazy in case it’s a literate patient, thus medical malpractice
has become more and more evident and coming out in the media as well as
newspapers and various other means. It’s very difficult for doctors to practice
these days under the pretext of experience and age and fancy degrees ,a proper
explanation and perfect information is demanded everywhere. There have been
instances where the doctor have been assaulted or harmed and hospital property
damaged by the family members of the patient because of a death of a family
member, improper care or hospital incompetence unavailibity or simple death of
the patient has invoked such reactions from the public in the recent years.
A
very famous case of Medical negligence which was brought to light recently
where a compensation of 5.96Cr was awarded is a benchmark for Indian system of
medicine to learn and incorporate discretion.
Anuradha Saha died painfully in May 1998 at the age of 36, her
skin sloughed off all over her body, except for her skull. She was encased in
bandages meant to prevent infections that had already lodged in her system. Her
immunity had been compromised after receiving a high dosage of steroids from
some of the top doctors in Kolkata.
For the past 15 years, her husband, Dr. Kunal Saha, has pushed
Indian courts to hold at least five doctors and the hospital responsible.
Though the lower courts rejected his cases, Dr. Saha persisted, appealing all
the way to the Supreme Court, which found the doctors and AMRI Hospital
(Advanced Medicare & Research Institute Ltd.) in Kolkata guilty of
negligence in 2009.
It took another four years for the Supreme Court to award Dr.
Saha an unprecedented amount in a medical negligence case in India — 60.8
million rupees ($1 million), plus 6 percent annual interest for each of the 15
years that Dr. Saha has been fighting his legal battle.
The landmark ruling is supposed to remind doctors, hospitals,
and nursing homes that they will be dealt with strictly if they do not maintain
their standard of care, the Supreme Court said in its judgment on Oct. 24.
“The patients, irrespective of their social, cultural and
economic background, are entitled to be treated with dignity, which not only
forms their fundamental right but also their human right,” wrote Justices
Chandramauli K.R. Prasad and V. Gopala Gowda.
In
short medical negligence will not go undetected and should be brought to light,
as a physician it’s my duty towards my patient and also a valid responsibility
as a human being,
A
classic case of medical negligence Dr.Asha vs. Mohd.Quasim NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI REVISION PETITION NO. 4336 OF
2012
(Against the order dated 02.08.2012 in Appeal No.
323 of 2009 of the Jharkhand State Consumer Disputes Redressal Commission,
Ranchi)
Medical negligence
– complaint arose out of a surgery (hysterectomy) performed by the surgeon on
the wife of the complainant and her death in another hospital resulting from an
alleged post-surgery complications – a case of medical negligence was held and awarded
compensation. The claim of the surgeon that it was done under the demand and
pressure of the relatives of the patient in itself carries a certificate of her
unprofessional conduct.
Medical malpractice with uninformed consent is also
an important area to be studied
D.H. Kumari v. Director, Nizam’s Institute of
Medical Services, 2003 (5) CLD 805 (AP SCDRC)
The case
goes as follows : the complaint filed against the treating doctors of the NIMS
who negligently and wrongly diagnosed the problem of Kumari as breast carcinoma
and subjected the patient to to unnecessary mastectomy- whether the surgical
oncologist followed the standard medical protocol and displayed reasonable
skill and care in diagnosing that the lump was cancerous?--- whether. According
to standard medical protocol any prior or further diagnostic tests were
indicated for confirmation of the disease before deciding to undertake modified
radical mastectomy?
Whether the consent for surgery obtained can be
considered a valid consent? No – No evidence produced on record to show that a
second FNA sample was taken as a measure of ample precaution—neither the
surgical oncologist himself nor the senior resident explain to kumari before obtaining
her consent, hence, the “consent” was neither “real” nor “valid” ----- the
commission held the NIMS as guilty of medical negligence and deficiency of
service on part of main doctors.
We understand the
medical profession is considered a noble profession because it helps in
preserving life. We believe life is God given. Thus, a doctor figures in the
scheme of God as he stands to carry out His command. A patient generally
approaches a doctor/hospital based on his/its reputation. Expectations of a
patient are two-fold: doctors and hospitals are expected to provide medical
treatment with all the knowledge and skill at their command and secondly they
will not do anything to harm the patient in any manner either because of their
negligence, carelessness, or reckless attitude of their staff. Though a doctor
may not be in a position to save his patient's life at all times, he is
expected to use his special knowledge and skill in the most appropriate manner
keeping in mind the interest of the patient who has entrusted his life to him.
Therefore, it is expected that a doctor carry out his duty with utmost care.
Disclosure of Malpractice: Mandatory or not?
Generally,
if there has been any kind of Malpractice, it is often wise to disclose the
same to the patient. If the patient was injured by a doctor, then the doctor
has a duty to inform the patient about the condition such that the patient can
make a decision to receive adequate care. The doctor does, however, have an
obligation to inform the patient that a surgical procedure went astray. Such
information can help the patient immensely. The medical practitioner has a positive duty to inform the
patient about his condition, the nature of the treatment proposed, the risks of
the treatment, and other options that the patient might have. This is so done because a patient is not
likely to have consent unless the doctor gives him full and complete
information. Howsoever when a doctor tells the patient the risks of a
treatment, they don’t have to explain all the possible risks just those that a
reasonable patient would want to know before deciding about treatment. If a
doctor doesn’t give all such information, the failure could be medical
malpractice, and a legal suit can arise out of such conduct. Even if a doctor
doesn’t give the patient all the information, he won’t be liable if a
reasonable person in the same position would have agreed to the treatment
anyway.
In the case of Poonam
Verma Vs. Ashwin Patel the court laid down 3 important criteria which
needs to be proved by the patient in the court to prove medical malpractice
against a doctor. The same are as follows:
·
Legal Duty
·
Breach of Legal Duty
·
Damages : Cause and
Remoteness Test
Practices and
procedures which were once in vogue have been held as bad in law by the courts.
Cross-pathy practice is rampant even today, in spite of the trend-setting
judgment which bars doctors trained in one school of medicine from practicing
another pathy. In Poonam Verma- Appellant versus Ashwin Patel and
others-Respondents 1986-1996 Consumer 2250 (NS) Supreme Court (SC) of India,
the Apex Court settled the law in this regard. Dr Ashwin Patel registered as a
medical practitioner with the Gujarat Homoeopathic Medical Council as he had
studied Homoeopathy. He treated Pramod Verma with allopathic drugs. The patient
finally died. The SC held that since the law under which Dr Patel was
registered as a medical practitioner, required him to practice in homoeopathy
only, he was under a statutory duty not to enter the field of any other system
of medicine. He practiced Allopathy, without being qualified in that system
hence was guilty of negligence and therefore the appeal against him was allowed
in consonance with the maxim 'Sic Utere tuo ut alienum non loedas' (a person is
held liable at law for the consequences of his negligence). A compensation of
Rs 3 lakh was ordered to be paid to the dependents of the deceased.
Negligence
per se and liability of Doctors:
While
deliberating on the absence of basic qualifications of a homeopathic
,
the
Supreme
Court held that a person who does not have knowledge of a particular
system
of medicine but practices in that system is a quack. Where a person is guilty
of
Negligence
per se, no further proof is needed.
Doctor’s liability when the
Patient doesn’t want to know her Medical Status?
In
the last few years, some patients have begun asking not to know about their
conditions. These patients often feel they are not prepared to make the
necessary choices such knowledge would force the patients to make. However,
these conditions are often fatal and the patients would likely perish without
treatment.
For doctors, this is a difficult dilemma. The doctors have
the expertise and skills to treat the patient, yet the doctors cannot treat the
patient without the patient’s consent. From a legal standpoint, though, it is
possible to create a waiver removing all liable from the doctor if the patient
wishes not to be informed of the medical condition which afflicts the patient. This
situation is less straightforward and it is more difficult to justify a breach
for these reasons. Further in cases of AIDS or HIV there are situations
involving a patient who is incapable of making their own decisions. If a doctor
believes a patient to be incapable of making decisions, temporarily or
permanently, the law allows doctors to do whatever necessary to promote the
patient’s welfare.
Disclosure of Medical Information to Third Parties?
Another important question that arises
quiet often is, if doctors have any obligation to disclose a patient’s medical
information to third parties. This is largely seen in many recent cases where
it has been said that despite the privileged communication between doctor and patient, in certain given specific
circumstances, the liability of doctor to disclose information to third party
like Court, Insurance Co. are mandatory. Under the Code of Ethics Regulations, 2002, it is said that registered medical practitioner shall
not disclose the secrets of a patient that have been learnt in the exercise of
his / her profession except[3] –
- in a court of
law under orders of the Presiding Judge;
- in circumstances
where there is a serious and identified risk to a specific person and / or
community; and
- Notifiable
diseases.
Some of these situations include, but are not
limited to:
- Heath Insurance
- Criminal Liability
- Lawsuits
- Harmful Action on the part of the
patient
- Public Interest
Doctors can also disclose confidential
information about a patient if he believes it to be in the patient’s best
interests.
Public Interest:
When the law compels the disclosure of
confidential information, there may be cases where the law accepts that the
public interest justifies the disclosure. Finally, a doctor can breach
confidentiality of a patient, without consent, if he believes it to be in the
interest of the public. This is possibly the most controversial exception to
the doctor’s duty of confidentiality. Even in case of Criminal Liability a
doctor is not compelled by law to volunteer information to the police about
criminal conduct in the part of any of his patients but may be compelled by
specific statutes to do so if asked. When deciding whether to disclose
information about his patient a doctor must balance the public interest in
knowing the confidential details against his patient’s interest in them being
kept confidential. Are the public at significant risk if he does not disclose
the information? However in case of communicable / notifiable diseases, concerned public
health authorities should be informed immediately.
Lawsuits:
There has been no
doubt that no privilege whereby a doctor called to court can refuse to give evidence on the
grounds that it would involve the disclosure
of confidential information received by him in the course of his professional
relationship with his patient. On the other hand, the courts do have a wide
discretion, and will not order the breach of a confidence unless it is
absolutely necessary. Equally there is no privilege enabling a doctor to keep a
professional confidence by refusing to answer questions put to him in the
witness-box. The defense legal team are also
only entitled to have access to confidential material that is relevant to the
matters in issue in the criminal trial. They are not entitled to trawl through
a patient/victim’s entire medical and/or psychiatric history seeking material
for cross-examination.
Deception:
Research involving
deception is controversial given the requirement for informed consent.
Deception typically arises
in social
psychology, when researching a particular psychological process requires that
investigators deceive
Subjects. For
example, in the Milgram experiment, researchers wanted to determine the
willingness of participants to
obey authority
figures despite their personal conscientious objections. They had authority
figures demand that
participants deliver
what they thought was an electric shock to another researcher. For the study to
be successful, it
was necessary to
deceive the participants so they believed that the subject was a peer and that
their electric shocks
caused the peer
actual pain.
Nonetheless,
research involving deception prevents the subject/patient from exercising
his/her basic right of
autonomous informed
decision-making and conflicts with the ethical principle of Respect for
persons.
It is stated in the
Ethical Principles of Psychologists and Code of Conduct set by the American
Psychological
Association, that
psychologists may not conduct research that includes a deceptive compartment
unless the act is
justified by the
value and the importance of the results of such study, provided that this could
not be obtained in an
alternative way.
Moreover, the research should bear no potential harm to the subject as an
outcome of deception, be
it physical pain or
emotional distress. Finally, a debriefing session is required in which the
experimenter discloses to
the subject the use
of deception in the research he/she was part of and provides the subject with
the option of
withdrawing his/her
data.
Children
As children often
lack the decision making ability or legal power (competence) to provide true
informed consent for
medical decisions,
it often falls on parents or legal guardians to provide informed permission for
medical decisions.
This "consent
by proxy" usually works reasonably well, but can lead to ethical dilemmas
when the judgment of the
parents or guardians
and the medical professional differ with regard to what constitutes appropriate
decisions "in the
best interest of the
child". Children who are legally emancipated, and certain situations such
as decisions regarding
sexually transmitted
diseases or pregnancy, or for unemancipated minors who are deemed to have
medical decision
making capacity, may
be able to provide consent without the need for parental permission depending
on the laws of
the jurisdiction the
child lives in. The American Academy of Paediatrics encourages medical
professionals also to
seek the assent of
older children and adolescents by providing age appropriate information to
these children to help
empower them in the
decision making process.
Research on children
has benefited society in many ways. The only effective way to establish normal
patterns of
growth and
metabolism is to do research on infants and young children. When addressing the
issue of informed
consent with
children, the primary response is parental consent. This is valid, although
only legal guardians are able
to consent for a
child, not adult siblings. Additionally, parents may not order the termination
of a treatment that is
required to keep a
child alive, even if they feel it is in the best interest. Guardians are
typically involved in the consent of children, however a number of doctrines
have developed that allow children to receive health treatments
without parental
consent. For example, emancipated minors may consent to medical treatment, and
minors can also
consent in an emergency.
Vaccines
Except for during
clinical trials, there is no Federal requirement in the United States for
providing informed consent
regarding the
administration of vaccines.
Exceptions to Informed Consent:
The few exception to the doctrine of Informed
Consent are as follows. Liabilities for not taking informed Consent in these
cases are not incurred.
1. Extreme Emergency- insufficient
time to obtain patient’s consent, patient physically incapacitated from giving
consent.
2. Right of Waiver by Patient
3.
Incompetency
of the patient- where the patient does not possess the ability to understand
the situation and make a rational decision (unsoundness of mind, intoxicated,
minors etc.)
4. Therapeutic Privilege – out of all other exceptions to informed consent, this has been largely
grabbed all the attention. Withholding of information, by the doctor, which
would upset the patient and prompt the patient to unreasonably refuse the
treatment? Therapeutic privilege constitutes one of the
situations where the doctor's duty of disclosure in terms of the doctrine of
informed consent is restricted and allows the doctor to withhold information if
disclosure would be 'harmful' to a particular patient.
4.
In Castell
v De Greef [4], in which the existence of therapeutic-privilege defence was expressly
acknowledged.
A patient is entitled to provide or
refuse consent to treatment. This is regarded as patient autonomy or self-determination
in South African medical law.
It is imperative that the
correct and accurate diagnosis being provided by the treating doctor to the
patient;
Alternative methods of
treatment should be discussed with the patient;
The effects of treatment
should be discussed with the patient;
The patient should have knowledge
and appreciation as to provide informed consent.
A patient
should be informed and advised of inherent risks involved with the proposed
treatment:
According
to the Castell v de Greef 1994 (4) SA 408 (C) decision a doctor is obliged to
warn a patient of relevant and inherent risks of any proposed treatment and or
surgery. "A risk is material if, in the circumstances of the particular
case, a reasonable person in the patient's position, if warned of the risk,
would be likely to attach significance to it or if the medical practitioner is
or should reasonably be aware that the particular patient, if warned of the
risk, would be likely to attach significance to it" http://www.medicallaw.co.za/news-informed-consent.html
The therapeutic privilege is open to abuse. The most
fundamental objection to the therapeutic privilege is that it is paternalistic
and undermines the patient's right to self-determination, which is the
cornerstone of the informed-consent doctrine. Underlying the idea of a
therapeutic privilege, is the classical Hippocratic ethic in terms of which
doctors should do what in their judgment would lead to the greatest good or
least harm to their patents. The court in Canterbury
v Spenceli[5] expressed its concern that the
therapeutic privilege must be carefully circumscribed, for otherwise it might
devour the disclosure rule itself. Withholding information from patients has
the potential to undermine the trust placed in doctors.
Canterbury
v Spenceli
Brief Fact Summary. Plaintiff experienced back
pain. Defendant told Plaintiff that he needed surgery, but did not inform of
the risks of the surgery. Plaintiff sued Defendant for negligently withholding
the risk of the surgery.
Synopsis of Rule of Law. A doctor has a duty to disclose all reasonable information about a proposed treatment to his patients.
Synopsis of Rule of Law. A doctor has a duty to disclose all reasonable information about a proposed treatment to his patients.
Facts. Plaintiff consulted
Defendant, a doctor, after experiencing severe back pain. Defendant had the
Plaintiff undergo a myelogram, which revealed that the Plaintiff suffered from
a filling defect in the region of his fourth thoracic vertabra. Defendant told
Plaintiff that he needed to undergo a laminectomy to correct what he suspected
was a ruptured disc. Defendant did not tell Plaintiff the details of the
proposed operation nor did Plaintiff inquire about them. Defendant told
Plaintiff’s mom that the operation was a serious one, but not any more serious
than any other operation. Defendant performed the operation and discovered
Plaintiff’s swollen spinal cord to be in very poor condition. Defendant did
what he could to relieve the pressure and left Plaintiff in bed to recuperate.
Plaintiff was recuperating, when he slipped off the side of the bed and
suffered near-complete paralysis. There was no one there to assist him and no
side rail to break his fall. Defendant performed an em
ergency operation and Plaintiff’s condition improved. Plaintiff sued Defendant for negligence in the performance of the laminectomy and for failure to inform him of the risk involved. Plaintiff introduced no evidence to show medical and hospital practices customarily pursued in regard to the critical aspects of the case. Defendant testified that even without trauma, paralysis can be anticipated somewhere in the nature of one percent. Defendant felt that communication of the risk to Plaintiff was not good medical practice because it might deter him from undergoing needed surgery and might produce adverse physiological reactions, which could preclude the success of the operation. The trial court held that Plaintiff failed to produce any medical evidence indicating negligence. Plaintiff appealed.
Issue. Does Defendant have a duty to disclose the risk associated with surgery?
ergency operation and Plaintiff’s condition improved. Plaintiff sued Defendant for negligence in the performance of the laminectomy and for failure to inform him of the risk involved. Plaintiff introduced no evidence to show medical and hospital practices customarily pursued in regard to the critical aspects of the case. Defendant testified that even without trauma, paralysis can be anticipated somewhere in the nature of one percent. Defendant felt that communication of the risk to Plaintiff was not good medical practice because it might deter him from undergoing needed surgery and might produce adverse physiological reactions, which could preclude the success of the operation. The trial court held that Plaintiff failed to produce any medical evidence indicating negligence. Plaintiff appealed.
Issue. Does Defendant have a duty to disclose the risk associated with surgery?
Held. Yes. Judgment reversed.
Plaintiff’s evidence was of such caliber as to require a submission to the
jury.
* Defendant did not reveal the risk of paralysis from the laminectomy. Every human being of sound mind has a right to determine what shall be done with his own body. It is a physician’s duty to warn of the dangers lurking in the proposed treatment. There is also a duty to impart information, which the Plaintiff has every right to expect. In this case, Defendant had a duty to make adequate disclosure to Plaintiff.
* Defendant’s noncompliance with the professional custom to reveal, like any other departure from prevailing medical practice, may give rise to liability to Plaintiff. However, Plaintiff’s cause of action is not dependant upon the existence and nonperformance of irrelevant, professional tradition. The standard measuring performance of the duty to disclose by doctors, as by others, is conduct, which is reasonable under the circumstances.
* It is unrealistic to expect doctors to discuss with their patients every risk of proposed treatment, no matter how small or remote and generally unnecessary from the patient’s viewpoint. A risk is material when a reasonable person, in what the doctors knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forgo the proposed therapy.
* A doctor bears no responsibility for the discussion of hazards the patient has already discovered.
* When a genuine emergency arises, the impracticality of conferring with the patient dispenses a need for it. Also, a doctor does not have to disclose the risk of treatment if the disclosure would make the patient become ill or emotionally distraught.
* The privilege to withhold information does not include the paternalistic notion that the doctor may remain silent simply because divulgence might prompt the patient to forgo therapy the doctor feels the patient really needs.
* Defendant did not reveal the risk of paralysis from the laminectomy. Every human being of sound mind has a right to determine what shall be done with his own body. It is a physician’s duty to warn of the dangers lurking in the proposed treatment. There is also a duty to impart information, which the Plaintiff has every right to expect. In this case, Defendant had a duty to make adequate disclosure to Plaintiff.
* Defendant’s noncompliance with the professional custom to reveal, like any other departure from prevailing medical practice, may give rise to liability to Plaintiff. However, Plaintiff’s cause of action is not dependant upon the existence and nonperformance of irrelevant, professional tradition. The standard measuring performance of the duty to disclose by doctors, as by others, is conduct, which is reasonable under the circumstances.
* It is unrealistic to expect doctors to discuss with their patients every risk of proposed treatment, no matter how small or remote and generally unnecessary from the patient’s viewpoint. A risk is material when a reasonable person, in what the doctors knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forgo the proposed therapy.
* A doctor bears no responsibility for the discussion of hazards the patient has already discovered.
* When a genuine emergency arises, the impracticality of conferring with the patient dispenses a need for it. Also, a doctor does not have to disclose the risk of treatment if the disclosure would make the patient become ill or emotionally distraught.
* The privilege to withhold information does not include the paternalistic notion that the doctor may remain silent simply because divulgence might prompt the patient to forgo therapy the doctor feels the patient really needs.
Discussion. In this case, the court was
concerned with Defendant’s attempt to sensor from the Plaintiff the risk of
surgery.
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