A neurosurgeon must make numerous decisions during surgery, bringing to bear one’s personal universe of education and experience. When a case does not proceed as expected, best medical practice — that is, proceeding with what one believes is in the best interest of the patient — may not equate with a safe legal course for the physician. In the following case, a neurosurgeon and his practice were introduced to the “reasonable patient standard” of informed consent.
The plaintiff, a 47-year-old laborer, felt intense pain in his hip and back while at work. At the hospital the plaintiff’s symptoms suggested an acute left S1 radiculopathy with weakness in plantar flexion, loss of Achilles reflex, and severe radicular pain. A magnetic resonance image was taken and the treating neurosurgeon diagnosed a herniated disc at L5-S1 and recommended surgery.
The neurosurgeon performed a lumbar microdiscectomy the following day. During the course of the procedure, the neurosurgeon discovered that the disc at L5-S1 was not herniated. The neurosurgeon then explored underneath the disc and removed a piece of bone to expose a swollen S1 nerve root. Apparently of the belief that a tumor was the cause of the swelling, the neurosurgeon performed several small biopsies of the nerve root to send to a pathologist. The pathologist found the tissue to be healthy.
At Trial, Prior Consent’s an Issue
The plaintiff sued the neurosurgeon’s medical practice for malpractice. Notably, in an attempt to eliminate potential jury sympathy, the plaintiff’s attorneys elected not to sue the neurosurgeon individually.
The plaintiff alleged that the neurosurgeon failed to conduct a proper examination and should not have operated and, further, that the neurosurgeon failed to obtain prior consent before performing the biopsies. The plaintiff claimed that as a direct result of the small biopsies, he sustained permanent and irreparable damage to the nerve root resulting in numbness and weakness in his right leg. He also claimed that his injuries left him disabled and unable to return to work. The plaintiff was earning “30,000 a year and claimed a past wage loss of “102,000 and a future wage loss of “400,000. He also sought damages for pain and suffering.
The plaintiff’s expert opined at trial that the magnetic resonance image did not show a disc herniation at L5-S1, that the neurosurgeon failed to properly examine the plaintiff, and that the neurosurgeon should not have operated. He further asserted that the suspected nerve root abnormality was actually the normal ganglion portion of the nerve, thus demonstrating that the biopsies were unnecessary. The defense countered that it was reasonable to believe there was a tumor on the nerve root and, further, that the plaintiff’s injuries were preexisting. The defense pointed to a 1997 incident where the plaintiff fell, landing on his back.
After deliberating just 45 minutes, the jury returned a verdict in favor of the plaintiff and awarded damages in the amount of $1,077,000 ($102,000 for past lost earnings; $400,000 for future lost earnings; $75,000 for past pain and suffering; and $500,000 for future pain and suffering).
What Constitutes Complete Informed Consent?
The speed with which the jury returned its verdict highlights the importance of disclosing sufficient information to allow patients to make informed decisions concerning treatment. The doctrine of informed consent originates from the legal and ethical right patients have to direct what happens to their bodies, and from the ethical duty of physicians to involve patients in their own healthcare. Complete informed consent generally requires discussion of the:
- nature of the decision or procedure;
- reasonable alternatives to the proposed procedure;
- relevant risks, benefits and uncertainties related to each alternative;
- assessment of patient understanding; and
- patient’s acceptance of the decision and/ or procedure.
Informed consent cases often turn on one central issue: How much information is considered adequate? There are three different standards suggested in the pertinent literature and case law:
- The reasonable patient standard — What would the average patient need to know in order to make an informed decision regarding the decision and/or procedure?
- The reasonable physician standard — What would a typical physician disclose about this decision and/or procedure?
- The subjective standard — What would this particular patient need to know and understand to make an informed consent?
A growing number of courts are applying the reasonable patient standard. The reasonable physician standard is generally viewed as inconsistent with the goals of informed consent because the focus is on the physician rather than on precisely what the patient needs to know. The subjective standard is rarely applied given the difficulties of tailoring information to each patient.
The Better Course of Action
A threshold issue in this case was the performance of an unexpected procedure — a biopsy instead of a discectomy. Most physicians do not routinely consult with patients for all “contingency plans” prior to entering the operating room. Thus, a neurosurgeon typically will not consult with a patient regarding a tumor biopsy before operating on a disc.
Once the neurosurgeon in this case discovered that the disc was not herniated, the better course of action from a legal perspective would have been to close the incision and discuss an exploratory procedure with the patient and/or the patient’s family.
Michael A. Chabraja, JD, is a partner with McGuireWoods LLP, in Chicago, Ill.