Many Washington, D.C. medical malpractice cases ultimately come down to whether a doctor adequately informed the patient of the risks involved with a procedure. This is called informed consent. Earlier this month, an appellate court in Oklahoma issued a written opinion in a medical malpractice case dealing with the issue of informed consent. The court had to determine if a patient can give informed consent to undergo a surgery without knowing who will be actually performing the surgery. Ultimately, the court determined that in order for a patient’s consent to be valid, the doctor must inform the patient of anyone who will be performing the significant portions of the procedure.
The plaintiff was a patient of the defendant gynecologist. In 2010, the defendant recommended that the plaintiff undergo a total laparoscopic hysterectomy, and the plaintiff agreed. Prior to the surgery, the plaintiff signed a form indicating her consent to the procedure. The consent form stated that the plaintiff authorizes the defendant and “whomever he/she (they) may designate as his/her assistants, to perform the following operative or diagnostic procedure(s): total laparoscopic hysterectomy.” There was also a dedicated section to list who would be assisting with the procedure, but that portion was left blank.
The defendant enlisted the help of a certified nurse with whom she had worked many times in the past. The nurse was not a hospital employee but was an independent contractor hired by the defendant.
During the procedure, the plaintiff suffered a severed ureter, resulting in serious injuries. At trial, it was not clear exactly who performed which surgical tasks, but it was undisputed that the nurse performed significant portions of the surgery.
The plaintiff filed a medical malpractice claim against the doctor, claiming that she never gave informed consent for the surgery. The plaintiff argued that it was incumbent upon the doctor to let her know who would be performing the surgery, and without that knowledge, any consent she gave was not “informed.”
The court agreed, first noting that the “scope of a physician’s communications must be measured by his/her patient’s need to know enough information to enable the patient to make an informed and intelligent choice.” Since the participation of a non-doctor during a medical procedure may increase the risks of an adverse event, the court held that a physician has a duty to disclose the identity of any non-doctor who may be assisting with significant portions of the procedure. Without this knowledge, the court explained, a patient cannot give fully informed consent to a medical procedure.
Have You Been a Victim of Medical Malpractice?
If you or a loved one has recently suffered due to what you believe to have been negligent medical care, you may be entitled to monetary compensation through a Washington, D.C. medical malpractice lawsuit. The dedicated attorneys at the Washington, D.C. personal injury law firm of Lebowitz & Mzhen Personal Injury Lawyers have extensive experience handling all types of personal injury claims, including medical battery and medical malpractice cases. Call 410-654-3600 to schedule a free consultation with an attorney today.
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Court Rejects Slip-and-Fall Plaintiff’s Case for Lack of Evidence, Washington DC Injury Lawyer Blog, June 30, 2017