After a hotly contested trial in which the obstetrics assistant physician was defended by charles Roessing and Rosemary Schnall, now retired partners, the jury concluded that not all health care providers had been negligent and that the obstetrician was not responsible for being informed. ¶14 In Smith v. Reisig, M.D., Inc., a patient sued her physician for lack of informed consent after undergoing a hysterectomy that resulted in a bladder injury. 1984 OK 56, 686 p.2d 285. The doctor`s testimony and other evidence revealed that hormone therapy was a viable alternative to hysterectomy and may have been preferable to surgery. Id., ¶ 11, 686 P.2d to 288. But this alternative was not revealed to the patient. This court found that the physician had failed to disclose feasible alternatives to the patient and that “this lack of information alone” constituted a breach of the physician`s duty to disclose. Id. “If the remaining elements are respected, such a violation will result in liability for the results of the treatment.” The first reported legal decision involving informed consent was the English case slater v. Baker & Stapelton of 1767.13,14 A patient sued two surgeons for breaking a partially healed fracture to improve their alignment. Citing the testimony of doctors who testified on behalf of the patient, the court ruled that it is “the custom and law of surgeons” to obtain the patient`s consent before initiating surgery.
While the content of physician disclosure and the process by which patient consent is obtained have evolved, the important point is that physicians` obligation to obtain patient consent before initiating procedures has been recognized over the centuries.15 This was a case of medical malpractice based in part on the doctrine of informed consent. Complainant Teresa Allen swallowed a small nail. She went to the emergency room at Duncan Regional Hospital. Calls John Harrison, D.O., physician, examined Allen. An X-ray confirmed the presence of a foreign body in Allen`s stomach, just below the diaphragm. Based on the physician`s evaluation and clinical judgment, the physician rejected Allen with the prescription: (1) “a high-fiber diet to allow the nail to pass”; (2) return to the hospital if he has had problems; and (3) follow-up with your GP in three days. A few days later, Allen went to the emergency room at Southwestern Hospital in Lawton after vomiting. On the same day, the hospital performed emergency surgery to remove the ingested nail from Allen`s intestines. At the time, Allen was being treated for a perforated and infected intestine. In addition, Allen underwent two other surgeries to treat complications resulting from the first surgery.
Allen sued the regional hospital and Physician Duncan for alleged medical negligence on the part of the defendants and failure to obtain Allen`s informed consent. Specifically, Allen claimed that Physician did not disclose the potential risk of letting the nail through his digestive system, as well as alternatives to his recommended treatment. If the physician had indeed complied with his disclosure requirement, Allen would have “chosen the option of not receiving treatment or any other treatment.” The issue raised during the certiorari review was whether the doctrine of informed consent requires a physician to obtain the patient`s consent before performing non-surgical or non-invasive treatment. “Inherent in the question asked is whether a doctor – in addition to discussing with the patient the treatment alternatives that the doctor recommends – should discuss medically reasonable alternatives that the doctor does not recommend.” After reviewing the court record, the Oklahoma Supreme Court answered yes to both questions. Lack of consent is not a lack of informed consent – Wuerz v. Huffaker, 42 S.W.3d 652 (Mo.App. E.D. 2001) Rosemary Schnall and Edward Koch recently won a case in the Pennsylvania Supreme Court regarding informed consent to surgery. In Cooper v. Lankenau Hospital, the plaintiffs alleged that various physicians and the hospital acted negligently in performing an emergency caesarean section and that the obstetrician on duty was responsible for allegedly failing to obtain the informed consent of the applicant`s mother prior to surgery. There are two exceptions to this rule. The first exception comes into play when the patient is unconscious or unable to consent and the possible harm of non-treatment outweighs the harm of the proposed treatment [7].
The second exception, known as the therapeutic privilege principle, recognizes that, in certain situations, disclosure of certain risks would not be in the patient`s best medical interest. This principle must be exercised with great care and discretion and must not be used as an excuse to retain bad news. It only applies if, at the physician`s clinical discretion, disclosure would worsen the patient`s condition [8]. Sometimes those most in need of protection cannot consent to medical treatment or research for themselves. Wards of the state are an excellent example of this type of vulnerable population, and our article in the Policy Forum explores the importance of appointing effective guardians to respect the rights of these minors. ¶10 A plea based on lack of informed consent consists of three essential elements: (1) secrecy, (2) causation and (3) infringement. Scott v. Bradford, 1979 OK 165, ¶ 18, 606 pp.2d 554, 558. The full disclosure rule announced in Scott is not without exception.
Although a physician`s failure to disclose this is the first element in maintaining this remedy, such an obligation may be excused if the circumstances warrant it. For example, disclosure is not required if the risks are generally known or known to the patient; “whether full disclosure of a patient`s overall care and best would be detrimental. . . .” or in an emergency where the patient or his representative cannot determine for himself “whether treatment should be carried out.” Id., ¶ 16, 606 P.2d to 558. ¶11 In the appeal, the parties disagree on the interpretation of Scott and his descendants. The differences between these interpretations are highlighted when, as in this case, a court must consider a physician`s obligation to obtain informed consent from a patient, whether the physician is performing invasive or non-invasive treatment. Allen argues that the doctrine of informed consent is not limited to surgical procedures.
Rather, the doctrine applies to treatment taken up by a doctor, whether invasive or non-invasive. However, the physician claims that the doctrine does not apply to emergency physicians. Therefore, it would be an extension of Oklahoma`s consent laws to require an emergency physician to offer surgical/invasive options outside of their field of practice and contrary to their medical judgment. The doctor is wrong. The third case involves a teenager whose cancer has come back. Treatment options that have toxic side effects and represent the patient`s best chance of recovery are quite difficult to explain to an adult, and mature minors deserve special attention. Can the adolescent refuse treatment? Should the doctor minimize the effects of the therapy to convince the teen to start treatment? Finally, recognizing that most physicians face physical examination on a daily basis, our fourth case explores the line between supposed and explicit consent during sensitive aspects of physical routine. ¶6 The Court of Appeal upheld this for slightly different reasons. Citing Smith v.
Reisig, M.D., Inc., 1984 OK 56, 686 P.2d 285, the Court of Appeal concluded that the doctrine of informed consent is triggered only when a physician performs surgical treatment that results in injury to the patient but does not disclose viable alternatives to surgery. .