Losing a Malpractice Case May Depend on Where You Live

“Dr Lose” surgically removes a melanoma from the face of his patient, “Ms Doe,” and warns her about the risks of infection, bleeding, and scarring. The surgery is uneventful. Unfortunately, some 5 days later Ms Doe develops cellulitis and, ultimately, sepsis. After a lengthy hospitalization, losing her job, and developing a fear of physicians, she sues the doctor for negligence. The crux of her case is that although she had been warned about the possibility of infection, Dr Lose should have explained to her that infection could lead to sepsis, and possibly death. Should Dr Lose have done that or was his warning about the risk of infection sufficient? What is he required to disclose during an informed consent discussion? Currently, there are 2 different standards on this issue, a physician-centered standard and a patient-centered standard. The first case in which a court expressed the physician-centered standard was Natanson v Kline. The patient in that case had undergone cobalt radiation therapy to prevent breast cancer recurrence after mastectomy. The patient sued, claiming negligence on the physician’s part for failing to warn her of the risks of radiation therapy, which resulted in severe injury. The court stated that the physician must “disclose and explain to the patient in language as simple as necessary the nature of the ailment, the nature of the proposed treatment, the probability of success or of alternatives, and perhaps the risks of unfortunate results and unforeseen conditions within the body.” This is the language most courts use today to define what must be disclosed to obtain informed consent.

Natanson’s professional standard of disclosure was the law of the land until 3 different courts modified it by holding that the disclosure standard should be what a patient would reasonably need to know in order to make an informed decision, instead of what a reasonable physician would disclose. This “reasonable patient” standard is more than the “reasonable practitioner” standard would give a patient even more autonomy and right of self-determination.

Multiple courts have criticized the physician-centered standard of what to disclose, noting that the requirement of expert testimony undermines the fundamental principle underlying the doctrine of informed consent, which is the patients’ right to do as they wish with their own body. These courts hold “the requirement that a patient obtain an expert to evaluate the disclosures…undermines the very basis of the informed consent theory—the patient’s right to be the final judge to do with his body as he wills.” Nevertheless, the patient-centered standard remains the minority view in this country.

It seems probably that Dr Lose, in a “reasonable medical practitioner” jurisdiction, would not lose the case. In a “reasonable patient” jurisdiction, the conclusion is not so clear.

David J. Goldberg, MD, JD, is medical director of Skin Laser and Surgery Specialists of New York and New Jersey; director of cosmetic dermatology and clinical research at Schweiger Dermatology Group in New York, New York; and clinical professor of dermatology and past director of Mohs Surgery and Laser Research at the Icahn School of Medicine at Mount Sinai in New York, New York.