The Supreme Court of the State of Oklahoma (“Oklahoma Supreme Court”) held its in opinion filed on June 20, 2017 that the doctrine of informed consent requires a physician to obtain the patient’s consent before using a non-doctor to perform significant portions of a surgery for which the physician was engaged to perform thereby subjecting the patient to a heightened risk of injury.
The Informed Consent Doctrine
The Oklahoma Supreme Court stated that thirty-eight years of Oklahoma’s well-established precedent establishes that a patient’s right of self-determination is only exercised effectively if the physician discloses to the patient enough information to enable the patient to make an intelligent and informed choice. Subsumed in that duty is the physician’s obligation not only to disclose what he intends to do, but to supply information which addresses the question of whether the physician should do it.
The Oklahoma Supreme Court stated that the scope of a physician’s communication in obtaining informed consent for medical treatment is measured by his/her patient’s need to know, and that a risk is material if it would be likely to affect the patient’s decision.
The Oklahoma Supreme Court further stated that no bright-line rule exists separating the material from the immaterial; it is a fact question to be decided by the finder of facts when non-disclosure of a particular risk is open to debate.
In the case the Oklahoma Supreme Court was deciding, the defendant gynecologist performed a total laparoscopic hysterectomy on the plaintiff in 2010. The defendant arranged for a non-physician to assist her in performing the surgery but failed to advise the plaintiff of such (the non-physician had previously assisted the defendant in approximately 40 to 50 cases of which 90 percent were hysterectomies). The non-physician was not an employee of the defendant or the hospital where the surgery took place.
Prior to the surgery, the plaintiff executed a written consent for the surgery that authorized 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.” However, the consent form also contained a dedicated section requiring the designation of any persons authorized to perform “significant surgical task(s),” which was left blank.
During the July 10, 2010 surgery, the plaintiff’s ureter was perforated and another surgeon had to repair the damaged ureter. The plaintiff alleged in her Oklahoma medical malpractice lawsuit that she suffered physical pain, impairment, limited mobility, and was required to use a catheter for a period of time as a result of the alleged medical negligence, and she required subsequent corrective surgeries to further repair the damaged ureter and to remove scar tissue.
It was unclear who caused the injury to the plaintiff’s right ureter but the defendant and the non-physician assistant conceded that the non-physician assistant used the harmonic scalpel to cauterize and cut the round ligament, utero ovarian pedicle, broad ligament, and uterine artery–all located on the right side of the plaintiff’s uterus and in close proximity to her right ureter.
The Oklahoma Supreme Court held that the trial court erred in granting the defendants’ summary judgment motions because the defendant surgeon had a duty to disclose to the plaintiff the use of the non-physician assistant and the assistant’s involvement in performing the total laparoscopic hysterectomy: even the executed written consent form required the designation of the “physician’s portion of the procedure,” and other persons performing significant surgical tasks, which is distinguishable from auxiliary personnel. The Oklahoma Supreme Court held that material facts exist as to whether the undisclosed heightened risk of a perforated ureter was the proximate cause of the plaintiff’s injury.
The Oklahoma Supreme Court concluded: ” … this Court reemphasizes 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. In other words, full disclosure of all material risks incident to treatment must be made. As such, no physician has carte blanche to delegate any or all tasks to a non-doctor. To hold otherwise, would obliterate a patient’s freedom of choice and reinstate the paternalistic approach to medicine … The scope of the duty to inform is broad enough to include a physician’s duty to inform the patient “who” will be performing significant portions of the procedure or surgical tasks.”
Source Hurley v. Kirk, 2017 OK 55, __ P.3d __
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