Understanding Perry v. Shaw — Making Informed Consent Better by Carolyn Oill, Esq. enlargement was not valid because she Greines, Martin, Stein & Richland LLP was medicated and about to go into surgery when she signed the form and that she A physician has a duty to inform a patient relied on the surgeon's oral promise that he of risks and complications inherent in a would not perform the enlargement. The proposed medical procedure before jury believed the patient, found the surgeon undertaking the procedure. The patient's guilty of negligence and battery, and consent to the procedure after such a awarded the patient $59,000 for medical disclosure is known as informed consent. expenses and more than $1 million in This should be familiar to any physician or noneconomic damages. surgeon, and certainly is something a surgeon does on a daily basis. The purpose of obtaining informed consent is for the patient A physician's failure to obtain consent for a to make an informed decision, to prevent medical procedure, whether or not the surprise to the patient and, at the same time, procedure is performed negligently, may result to protect the physician from a potential in a lawsuit for battery that is not subject to lawsuit for damages if a risk or complication manifests itself as a result of the procedure. the Medical Injury Compensation Reform Act But what happens when a physician obtains (MICRA) $250,000 noneconomic damage cap written informed consent for a procedure and and is potentially subject to punitive damages then is sued — not for complications or as well This is true even if the claim is linked undisclosed risks, but for performing surgery to a negligent claim. without obtaining consent at all? Tins is precisely what happened in Perry v. Shaw.1 The impact of MICRA The facts of the case The purpose of this article is not to address The patient in Perry v. Shaw asked the whether the jury was correct in deciding physician to perform plastic surgery to that the consent was invalid. Indeed, the remove excess skin after she had lost a issue on appeal in Perry v, Shaw was whether substantial amount of weight. On several the $1 million dollar judgment awarded occasions, the patient and surgeon discussed by the jury was subject to reduction under breast enlargement as part of the skin MICRA. MICRA was enacted for the removal process, but the patient indicated she purpose of reducing medical malpractice did not want that procedure. On the day of lawsuits and awards which, in turn, would the surgery to remove the excess skin, the reduce the cost of medical malpractice patient signed a consent form for the breast insurance in the hope that medical services enlargement, which the surgeon performed. would become more readily available and In her subsequent lawsuit for negligence and more affordable. battery, the woman asserted that the surgeon performed the breast enlargement against her With this goal in mind, a series of statutes was wishes. She argued that her consent to the enacted that, among other things, shortened Continued on page 2 > Understanding Perry v. Shaw Continued from page 1 the time period for filing a medical 'professional negligence' that there Medical battery claims malpractice lawsuit, allowed periodic existed a species of battery that our now not protected payment of future damages without highest court had said was not by MICRA the plaintiff's consent, authorized negligence."5 In Civil Code section arbitration clauses in medical services 3333.2 — the statute at issue in Perry The significance of the court's contracts, and placed a $250,000 cap v. Shaw — "professional negligence" decision in Perry v. Shaw cannot be on noneconomic damages in is defined as "a negligent act or underestimated. The decision takes professional negligence actions.2 omission to act by a health care damages for medical battery claims In Perry v. Shaw, the question before provider in the rendering of outside the protection of MICRA. A the appellate court was whether this professional services."6 In contrast, physician's failure to obtain consent $250,000 cap applies in a case in the Code of Civil Procedure section for a medical procedure, even if the which the jury's verdict is based, at 1295, which governs arbitration procedure is performed flawlessly, least in part, on a finding that the provisions in medical services may result in a lawsuit for battery defendant committed a battery — contracts, refers to disputes over the that is not subject to the $250,000 an intentional tort, not negligence. broader "medical malpractice," which noneconomic damage cap and is is defined as disputes over "whether potentially subject to punitive 3 In Cobbs v. Grant, the California any medical services rendered under damages. Moreover, this is true Supreme Court distinguished this contract were unnecessary or even if the claim is linked to negligence from battery in a medical unauthorized or were improperly, a negligence claim, which would malpractice setting. When an negligently or incompetently otherwise be covered by section undisclosed complication results from rendered ... "7 As used in this 3333.2, as the facts of Perry v. Shaw a procedure to which the patient has statute, "medical malpractice" amply illustrate. If a jury finds the consented, the action constitutes includes medical battery claims. physician was negligent and negligence and the physician may In a similar vein, the use of the committed an intentional tort, the introduce evidence that the standard phrase "an action arising out of damages are effectively taken out of care in the community did not medical negligence" has been of MICRA protection. require him or her to disclose the risk interpreted broadly to include battery- or complication that presented itself. claims in Code of Civil Procedure Taking proactive steps section 425.13, which requires a So, what can a practicing physician plaintiff who wants to include a claim do to prevent this from happening? When the patient gives permission to for punitive damages against a health First and foremost — and this is perform one type of treatment and the care provider to first file a motion in nothing new — document everything. doctor performs another, the requisite the court, demonstrating that the This is particularly important in the element of deliberate intent to deviate plaintiff is likely to succeed on his area of consent for medical procedures. from the consent given (to establish a punitive damages claim.8 The patient in Perry v. Shaw asserted battery) is present. that she was medicated when she By contrast, Civil Code section 3333.2, signed the relevant consent form. which places a cap on noneconomic The physician should have the However, when a physician performs damages, does not use the term patient sign the consent form before a procedure to which the patient did "medical malpractice," nor does it he or she is medicated, and the not consent, the action constitutes refer to actions "arising out of consent form should reflect that professional negligence." Instead, battery. "When the patient gives fact. Ensure that the correct procedure this section limits its application to permission to perform one type of or procedures are included on the professional negligence, a term that treatment and the doctor performs form and read the form to the patient. is expressly defined in the statute another, the requisite element of Make sure that appropriate staff itself to include only actions based deliberate intent to deviate from the members get the consent form into on negligence in rendering medical the patient's file. consent given (to establish a battery) 9 4 care. Based on the legislative history is present." of MICRA, the court in Perry v. Shaw The operating room team should Cobbs v. Grant was decided three years concluded that the legislature verify that the signed informed before MICRA was enacted. Therefore, deliberately used "professional consent form is in the medical record when interpreting MICRA provisions, negligence" in the statute, knowing and matches the scheduled procedure, the courts have assumed that the that true battery claims would not be including side and site. legislature "knew when it defined included in its ambit Trust your instincts. If a patient In troublesome cases If it is not possible to videotape the has expressed reluctance about a When a patient has been particularly consent, if the physician believes that procedure or has consistently troublesome, e.g., a patient who is the patient's demeanor would not lend challenged the physician's advice, often dissatisfied with the medical itself to a favorable video, or if the it may be wise to have an unbiased treatment, or persistently fluctuates patient insists at the last minute that a witness (not someone on the surgical on consent or has a difficult time procedure be done or not done (in team and not a family member of the making a decision, the physician which case a signature on a consent patient, if possible) present during the might consider videotaping the form may not be sufficient to protect consent procedure. The witness should consent. The videotaped consent the physician from the patient's later witness more than the patient's would give a jury in a later lawsuit disclaimer of consent), the physician signature on the form. Allow the an opportunity to evaluate for itself might consider requiring a handwritten, witness to hear what the surgeon tells the patient's frame of mind and to signed and dated statement from the the patient and verify that the oral determine whether consent was patient. This statement can be written information is consistent with the given voluntarily. Obviously, the on the back of the consent form, for information on the form, and then effectiveness of such a videotape example, or on a separate sheet of blank attest to that fact on the form.