The Appeal

Mrs D appealed the court’s dismissal of the informed consent claim. The appeals court noted that state law has held that “informed consent and medical negligence are distinct claims that apply in different situations. While there is some overlap, they are 2 different theories of recovery with independent rationales.” It went on to note that “informed consent allows a patient to recover damages from a physician even though the medical diagnosis or treatment was not negligent.” The court noted that the state’s informed consent statute is “generally based on the policy judgment that patients have the right to make decisions about their own medical treatment. A necessary corollary to this principle is that the individual be given sufficient information to make an intelligent decision.”

To prove failure of informed consent, a plaintiff must show: a) that the health care provider failed to inform the patient of a material fact or facts relating to the treatment; b) that the patient consented to the treatment without being aware of or fully informed of such material facts; c) that a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material facts; and d) that the treatment in question proximately caused injury to the patient.

The court noted that Mrs D had presented evidence that once she was correctly diagnosed with a cervical fracture there were other tests available as part of her initial diagnosis (namely a CTA) to check for vertebral artery dissection prior to discharge. Mrs D also presented evidence that if the CTA had been performed, her vertebral artery dissection would have been diagnosed and a different treatment would have been initiated, preventing her subsequent stroke.

The appeals court concluded that the lower court had improperly dismissed Mrs D’s informed consent claim. “Mrs D was never advised of the risk of a vertebral artery dissection or the availability of a CTA scan to look for the injury which would have led to a different treatment,” wrote the court in its decision. “There were diagnostic and treating procedures available to the treating doctors. The determining factor is whether the process of diagnosis presents an informed decision for the patient to make about his or her care,” wrote the court. “Here, there was.” The court reversed the dismissal of the informed consent claim and remanded the case back to the lower court for trial.

Protecting Yourself

The court explained the issue pretty clearly – patients have the right to make their own decisions about their own health care. However, a patient has to have the requisite information in order to make an intelligent or informed decision. Make sure that you provide your patients with the information they need to make the best, most knowledgeable decision possible.