In the case it was deciding, the plaintiff had swallowed a small nail on June 1, 2009 and went to a hospital’s emergency room where the defendant ER physician examined her and ordered an X-ray that showed a foreign body in her stomach, just below her diaphragm. The plaintiff was discharged with instructions for “a high-fiber diet to let the nail pass,” return to the hospital if she had any problems, and to follow up with her family doctor in three days.
The plaintiff had severe vomiting that led her to go to another hospital on June 2, 2009, where the hospital performed emergency surgery to remove the ingested nail from her intestines; she was also treated for a perforated and infected bowel. Complications from the June 2, 2009 emergency surgery required two additional surgeries.
The plaintiff’s Oklahoma medical malpractice lawsuit alleged medical negligence and the failure to obtain her informed consent (i.e., the emergency room physician’s failure to disclose the potential risk in letting the nail pass through the plaintiff’s digestive system as well as the alternatives to the physician’s recommended course of treatment).
The defendant physician contended that the alternative treatment options (i.e., endoscopic or surgical intervention) were beyond his field of practice and, therefore, he was not required to advise the plaintiff of those alternatives. The trial court granted partial summary judgment to the defendant ER physician on the informed consent issue, reasoning that the doctrine of informed consent does not apply where no action was taken by the attending physician but rather the doctrine of informed consent only applies when the treatment received causes injury, and alternative procedures were not explained.
The Oklahoma Supreme Court stated that the linchpin of the informed consent doctrine is a physician’s duty to inform a patient of the medically reasonable treatment options and their attendant risks, and a physician is obligated not only to disclose what he intends to do, but to supply information which addresses the question of whether he should do it.
The Oklahoma Supreme Court stated that the informed consent doctrine is predicated on a physician’s duty to disclose, and the decisive factor is not the invasiveness of the treatment, but whether the physician provided the patient with enough information that would enable the patient to make an informed choice before subjecting the patient to a recommended course of treatment – the ultimate decision rests with the patient. Therefore, physicians do not adequately discharge their obligations by limiting their disclosures to the treatments they recommend or treatments within their scope of practice.
The Oklahoma Supreme Court held that a physician has a duty to inform the patient not only of the medically reasonable alternatives the physician recommends, but of medically reasonable alternatives that the physician does not recommend to the patient – the doctrine applies equally to invasive, as well as noninvasive, procedures (any other interpretation belies the fundamental premise that “each man [is] considered to be his own master”). A physician’s duty of disclosure must be measured by his patient’s need to know enough information to enable the patient to make an intelligent choice, and this duty exists regardless of whether the prescribed treatment is invasive or noninvasive.
In the case it was deciding, the Oklahoma Supreme Court stated that although the defendant ER physician acknowledged that endoscopic or surgical intervention was a medically reasonable alternative, he withheld this information from the plaintiff as it was beyond his scope of practice and experience. Further, the defendant had a duty to disclose the alternative invasive interventions even to the extent that it may have required consultation with another medical professional to facilitate the disclosure. Based on his clinical judgment the defendant, not the plaintiff, made the decision to let the nail pass through her digestive system. But, that was not solely within the defendant’s purview.
The Oklahoma Supreme Court held that the doctrine of informed consent applies equally to invasive as well as noninvasive medical treatments and treatment alternatives regardless of a physician’s scope of practice. To effectively discharge a physician’s duty to disclose, a physician must disclose the medically reasonable alternatives regardless of whether it is the physician’s preferred method of treatment. The ultimate decision of what treatment a patient receives rests with the patient, not the physician. The Oklahoma Supreme Court held that the trial court erred in holding that the plaintiff’s claim of informed consent was not actionable, and therefore remanded the case for further proceedings consistent with its opinion.
Source Allen v. Harrison, 2016 OK 44, __ P.3d __.
If you believe that a physician failed to obtain your informed consent regarding medical treatment or a medical procedure in Oklahoma or elsewhere in the United States, you should promptly consult with a medical malpractice lawyer in Oklahoma or in your U.S. state who may investigate your informed consent claim for you and represent you in an informed consent case, if appropriate.
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