Informed Consent: the Duty to Disclose Medical Risks Informed Consent Is the Principle the Duty of Care Required That a Physician Cal.3D at Page 244
Total Page：16
File Type：pdf, Size：1020Kb
By John P. Blumberg Informed consent: The duty to disclose medical risks Informed consent is the principle the duty of care required that a physician Cal.3d at page 244. There is also no duty that a patient has the right to know about must explain to a patient, in lay terms, of disclosure where the patient is unable the risks and benefits of a medical proce- the inherent and potential dangers of a to evaluate the information, in emergen- dure before making a decision whether to proposed medical treatment. cies, for example, or when the patient is a undergo the treatment. The corollary of The plaintiff has the burden of minor or incompetent. Id. at page 243. this right is the duty of the physician to proof whether the withheld information The physician has the discretion to with- disclose certain information to the was material, that is, whether a reason- hold information if he or she reasonably patient. This article discusses the varia- able person in the patient’s position believes that the information would be so tions of this cause of action which are would regard the information as signif- upsetting that the patient would be important to both the pleading and proof icant in deciding whether to undergo unable to make a reasoned decision. The of the claim, as well as the jury instruc- the procedure. Mathis v. Morrissey patient also has the right to ask not to be tions and special verdict form. (1992) 11 Cal.App.4th 332, 345-347 [13 informed, although the physician does The law of informed consent Cal.Rptr.2d 819]; Parris v. Sands (1993) 21 not have to comply with the request. Id. at Liability arising from medical care is Cal.App.4th 187, 193 [25 Cal.Rptr.2d page 246. based on the violation of a duty owed by 800]. Although the standard is an objec- Expert testimony is limited the doctor to the patient. Such liability tive one that speaks in terms of what a In medical malpractice cases, “the may occur in various ways. Generally reasonable patient would want to know, standard of care against which the acts of speaking, medical negligence is the fail- the scope of disclosure is expanded if the a physician are to be measured is a matter ure to treat a patient with that degree of physician has reason to know of a peculiarly within the knowledge of skill, knowledge, and care ordinarily pos- patient’s unique concerns. Truman v. experts; it presents the basic issue in a sessed and exercised by other physicians Thomas (1980) 27 Cal.3d 285, 291 [165 malpractice action and can only be under similar circumstances. Bardessono v. Cal.Rptr. 308]. proved by their testimony, unless the con- Michels (1970) 3 Cal.3d 780, 788 [91 A physician may be required to dis- duct required by the particular circum- Cal.Rptr. 760]. Medical battery is the per- close alternative schools of thought, so stances is within the common knowledge formance of a treatment that is substan- long as the information is material. of the layman.” Landeros v. Flood (1976) tially different from that for which con- Mathis v. Morrissey, supra, 11 Cal.App.4th 17 Cal.3d 399, 408 [131 Cal.Rptr. 69]. sent was obtained. Nelson v. Gaunt (1981) at pages 344-345. A patient must be However, if the negligence is the failure 125 Cal.App.3d 623, 635 [178 Cal.Rptr. informed about the experimental nature to have given informed consent, the rule 167]. of treatment. Daum v. SpineCare Medical is otherwise. The Supreme Court Although the duty of informed con- Group, Inc. (1997) 52 Cal.App.4th 1285, observed that “Respect for the patient’s sent is taught in medical school, the gen- 1305 [61 Cal.Rptr.2d 260]. There is a right of self- determination on particular esis of its modern application in duty of the physician to disclose any per- therapy demands a standard set by law California law was the case of Cobbs v. sonal interest – unrelated to the patient’s for physicians rather than one which Grant (1972) 8 Cal.3d 229 [104 Cal.Rptr. health – in the outcome of the treatment. physicians may or may not impose upon 505], in which the Supreme Court Moore v. Regents of Univ. of California themselves. Such evaluation and deci- employed several postulates: (1) That (1990) 51 Cal.3d 120, 131-132 [271 sion is a nonmedical judgment reserved patients are generally unlearned in med- Cal.Rptr. 146]. And there is also a duty of to the patient alone.” Cobbs v. Grant, ical sciences, (2) that an adult has the “informed refusal” in which the physician supra, 8 Cal.3d at page 243. right, in the exercise of control over his must explain the risks of refusing to In Betterton v. Leichtling (2002) 101 own body, to determine whether or not to undergo an otherwise risk-free proce- Cal.App.4th 749 [124 Cal.Rptr.2d 644] – submit to medical treatment, (3) that a dure. Truman v. Thomas, supra, 27 Cal.3d a case involving jury instructions – the patient’s consent must be informed, and at page 292; Moore v. Preventive Medicine Court of Appeal addressed the question (4) that the patient has an abject depend- Medical Group, Inc. (1986) 178 of whether the duty of a physician to ence upon and trust in his physician. (Id. Cal.App.3d 728, 738 [223 Cal.Rptr. 859]. give informed consent was based on the at p. 242.) The Supreme Court recog- A physician does not have to disclose standards of the medical community, nized that, although the failure to inform relatively minor risks inherent in com- that is, a negligence standard. In is a “technical battery,” it is usually more mon procedures, so long as the particular answering the question in the negative, appropriate to apply the law of negligence. treatment is not contraindicated in the the court traced the history of the law of Accordingly, the Court established that particular patient. Cobbs v. Grant, supra, 8 See Blumberg, Next Page By John P. Blumberg — continued from Previous Page informed consent. allowed to prove the so-called community were not disclosed to the patient, that these In Cobbs v. Grant (1972) 8 Cal.3d standard on either the scope of or duty of risks were reasonably available through con- 229, the court rejected the rule that the disclosure, expert testimony is clearly sultation or research, that a reasonable per- scope of disclosure in informed con- necessary to establish the material risks of son would not have consented, and that sent cases is measured by the custom of the procedure or treatment. serious consequences resulted from one of the medical community. “Unlimited In Mathis v. Morissey, supra, 120 the undisclosed risks. And because of the discretion in the physician is irreconcil- Cal.App.4th 332, 343, the Court of limited role of experts in informed consent able with the basic right of the patient Appeal, citing Cobbs v. Grant, supra, 8 cases, experts should not be allowed to tes- to make the ultimate informed decision Cal.3d 229 held: tify to the contrary. The defense counter- regarding the course of treatment to When a doctor recommends a partic- argument, however, would be that the exist- which he knowledgeably consents to be ular procedure then he or she must dis- ing case law on expert testimony deals sole- subjected.” (Id. at p. 243.) close to the patient all material informa- ly with the lack of discretion that a doctor Betterton v. Leichtling (2002) 101 tion necessary to the decision to under- has in disclosing material information – Cal.App.4th at page 754. go the procedure, including a reason- and that the question of whether the infor- The Betterton court continued its able explanation of the procedure, its mation should have been known is a ques- analysis by discussing the subsequent likelihood of success, the risks involved tion of fact based on the standard of care. Supreme Court case of Arato v. Avedon in accepting or rejecting the proposed Until an appellate court decides the issue, (1993) 5 Cal.4th 1172 [23 Cal.Rptr.2d procedure, and any other information plaintiff ’s attorneys should argue that that 131]: a skilled practitioner in good standing the use of experts should be limited. The Arato court endorsed Cobbs’s would disclose to the patient under Problems with jury instructions position that the standards of the med- the same or similar circumstances.” BAJI 6.11 (Reality of Consent – ical community do not absolutely gov- (Emphasis added.) Physician’s Duty of Disclosure) spoke in ern the duty of disclosure. “We under- Accordingly, experts may testify terms of a physician’s duty and that the line the limited and essentially sub- regarding the benefits and material risks failure of the physician to inform the sidiary role of expert testimony in of the proposed treatment and informa- patient before obtaining consent is negli- informed consent litigation. As we cau- tion other than serious consequences that gence that renders the physician subject tioned in Cobbs v. Grant, supra, 8 Cal.3d a reasonable practitioner is required to to liability. The instruction spoke clearly 229, a rule that filters the scope of disclose. in terms of negligence. The CACI patient disclosure entirely through the The doctor’s duty to know about the replacement for BAJI 6.11 is CACI 532, standards of the medical community ‘ “ risks which eliminated all reference to duty ‘arrogate[s] the decision [of what to dis- In the appropriate case, the defense and negligence.