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Patient Says She Was Bullied into Signing Consent Form

She'd repeatedly insisted she didn't want a hysterectomy.

Published: July 1, 2015

Is a signed consent form proof that a patient was sufficiently informed about a given procedure and has agreed to everything that's contained in the form? Or might it depend on the circumstances that led to the patient's signing? Those questions are at the center of a case involving a New York woman and the hospital she's suing.

The patient and the hospital agree on one point only: She repeatedly told her physician that she didn't want a hysterectomy. Now that she's had one, she says not only was she bullied into signing a consent form moments before surgery, but that the unwanted hysterectomy constitutes a case of assault and battery. The hospital, meanwhile, says, nonsense: She knew that the hysterectomy was a possibility and she signed the consent form according to protocol.

Initially, a lower court sided with the hospital and threw out the case, saying neither the informed consent charge nor the battery charge had any merit. But an appeals court has revived the case, with the majority saying that while the battery accusation is over the top, the informed consent charge deserves to be heard. To further confound the matter, two judges partially dissented from the majority decision, saying not only is informed consent a legitimate issue, but the battery charge shouldn't have been thrown out either. That opens the door for both sides to request appeals on both charges.

According to court documents, here's what happened: Sandra Thaw began seeing Teresa Lazar, MD, in 2004, after a pelvic ultrasound detected a mass. In 2005, after being offered various treatments, including a total abdominal hysterectomy, Ms. Thaw told Dr. Lazar she didn't want to have surgery.

In 2007, Ms. Thaw returned to Dr. Lazar after diagnostic tests indicated a possible malignancy. She again insisted that she didn't want a hysterectomy, but did consent to a laparoscopic procedure.

It's here that their stories diverge. Dr. Lazar acknowledges that Ms. Thaw continued to insist that she didn't want a hysterectomy, but says the patient understood that it might be necessary if the laparoscopic procedure revealed a likely malignancy. The patient signed a consent form to that effect, she says, before she was taken into the OR.

Ms. Thaw, however, says Dr. Lazar never told her the laparoscopic procedure might be converted to an open one and that she never relented from her insistence that no hysterectomy be performed under any circumstances. Furthermore, she says, she was in the OR and the procedure was about to begin, and anesthesia may have even been started, when a nurse "came running in" with the consent form. She says Dr. Lazar yelled at the staff, questioning why it hadn't been signed earlier. Ms. Thaw says she didn't have her glasses, that she could not and did not read the form, but that Dr. Lazar told her she had no choice but to sign it, because she might have cancer.

Dr. Lazar converted the procedure to an open one and performed a hysterectomy.

The lower court that dismissed the case determined that the signed consent form was all Dr. Lazar and North Shore University Hospital in Manhasset, N.Y., needed to prove that there was no malpractice, let alone battery. But the appeals court strongly disagreed, indicating that the circumstances that preceded the signing have to be considered.

As for the battery charge, the dissenting opinion notes that "courts have acknowledged that a doctor who performs a medical procedure on a patient without any consent, in the absence of an emergency, is liable for battery." In other words, it appears possible that if the informed consent charge stands, the battery charge may, as well.

Jim Burger

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