Archive September 2017 XVIII, No. 9

Medical Malpractice: The Limits of Informed Consent

Can patients claim damages if they were aware of the risks?

Amy Redington Riley, JD

sign a consent form DON'T RUSH Don't ask the patient to sign a consent form just before the anesthesia is about to be administered.

The issue of informed consent raises its head in many medical malpractice cases. Usually it happens with cases in which the patient claims the surgeon didn't properly inform him of the risks associated with a given surgical procedure. But what about those malpractice cases that don't raise a challenge to consent? Is the fact that a surgeon made a patient aware of the risks relevant to the standard of care? Not according to a recent ruling in the case of Mitchell v. Shikora. Here's why.

The value of consent
When we use the term "informed consent," we're referring to the form a patient signs authorizing the surgeon to perform a specific procedure, with full knowledge of the inherent risks and potential complications. The issue played a central role in Mitchell v. Shikora (osmag.net/EDQa8a), which involved a patient who had her bowel severed during a hysterectomy performed by an obstetric and gynecologic surgeon at a Pittsburgh, Pa., hospital in May 2012.

Six months ago, the Superior Court of Pennsylvania determined that even though the patient was informed of the risks and consented to the surgery, the patient's consent had no bearing on whether the surgeon was negligent. The Superior Court's decision, which effectively reversed a February 2016 trial court verdict, said the trial court erred by allowing the defendants to present evidence at trial — whether a bowel injury was a known risk or complication of the surgery — that should have been inadmissible.

Furthermore, the court said the defendants "misled" jurors into believing that informing the patient about the risks and complications established the standard of care, and this ultimately affected the outcome of the trial. In other words, just because the patient knows of the risk of potential complications associated with a particular procedure, it doesn't absolve the surgeon of responsibility if the patient sustains an injury stemming from a breach in the standard of care — in this case, the suit alleges, by failing to identify the bowel before cutting it.

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