What Side Effects And Dangers Must A Doctor Warn A Patient About To Properly Obtain Informed Consent?
Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.
Tatro v. Lueken, 212 Kan. 606, 512 P.2d 529 (1973).
This case addresses the following issue:
What side effects and dangers must a doctor warn a patient about to properly obtain informed consent?
Even though medical science has made unbelievable progress in the past decades, every treatment poses its own dangers that have not been entirely eliminated. Id. at 615. Because of this, a patient is normally entitled to information about relevant risks of a procedure before undergoing the treatment. Id. This is called obtaining informed consent. Id. This case explored exactly how many adverse effects must be disclosed for informed consent to be sufficiently “informed.” Id. at 616. Ultimately, the court decided that a doctor need only outline “disclosures which a reasonable medical practitioner would make under the same or similar circumstances.” Id.
Plaintiff in this case sought treatment from her OBGYN, Defendant. Id. at 607. Defendant advised Plaintiff that she had a fibroid tumor, a noncancerous growth that causes increased menstrual bleeding. Id. Defendant explained the procedure, as well as the most common risks involved. Id. at 618. Defendant did not disclose that the risk of vesicovaginal fistula, a condition where the bladder separates, causing urine to leak into the body. Id. Following Plaintiff’s procedure, she began experiencing the symptoms of vesicovaginal fistula. Id. at 608. Ultimately, another doctor diagnosed Plaintiff with this condition, which ultimately required surgery to correct. Id. Plaintiff filed suit, alleging negligence based on failing to warn Plaintiff of the potential risk of vesicovaginal fistula. Id.
A doctor has an obligation to obtain informed consent from a patient—circumstances permitting. Id. at 616. Exactly which potential risks and side effects must be disclosed is a difficult question to answer. Id. Certainly, a doctor doesn’t need to warn of every possible risk. Id. at 617. To set such a standard would be both impractical and impossible. Id. Instead, which risks must be disclosed depends on the circumstances in each case and is limited to “disclosures which a reasonable medical practitioner would make” under such circumstances. Id. at 616. Risks that are “infinitesimal, imaginative, or speculative” are not necessary to inform a patient. Id. at 617.
In this case, the court agreed with the trial court that Defendant did not need to warn Plaintiff about vesicovaginal fistula. Id. at 617-18. The risk of such a condition is always present in such a procedure, but it occurs very rarely. Id. at 617. However, the circumstances of this case further supported that no warning was necessary. Id. The condition primarily occurs in women who have had at least one child, and increases with the more children the woman has had. Id. at 618. It also becomes more of a risk as a woman ages, particularly over the age of forty. Id. Plaintiff was a young woman, only in her early-twenties. Id. Plaintiff had never had a child. Id. Based on all of these factors, Plaintiff was at little risk of suffering the condition. Id. The fact that Plaintiff did ultimately suffer this condition was tragic, but the court found no reason that Defendant should have warned Plaintiff about such an unlikely risk. Id.
Get your questions answered - call for a free,
20-minute phone consultation (913) 451-9500.