In this month's Legal Eagle, learn what clinicians are required to disclose about their personal health ahead of performing procedures.
“Dr Derm” is a prominent dermatologist in a large metropolitan city. He has been in practice for 2 decades and has a very good reputation. Three years ago, he performed a surgical excision on his patient. The patient became infected and ultimately experienced endocarditis. Within the 2-year statute of limitations, the plaintiff patient files a medical malpractice case against Dr Derm. During the subsequent discovery period, the plaintiff and her attorney find out that Dr Derm had a history of drug abuse decades ago. The malpractice claim is amended to include that Dr Derm’s history of drug abuse may have affected his patients’ care. In the very least, it is alleged that Dr Derm had a duty to inform his patients of his history of drug abuse. Doing so, they claim, would have been an appropriate part of informed consent. Is this true? Should dermatologists be required to disclose matters of personal health, even if so long ago, if matters related to physician health may increase the risk of harm to a patient?
Several courts have taken on this very issue. In Hidding v Williams,1 a Louisiana state court considered a negligence claim against an orthopedic surgeon in a case in which the patient sustained a neurological injury after surgery and alleged that the doctor should have disclosed his alcohol abuse history. The court agreed that the physician’s failure to inform the patient about his personal alcohol abuse voided the surgical consent. The court reasoned that both alcohol and drug abuse constituted a material risk that increased the risk of injury from surgery and if disclosed, the patient likely would have sought treatment elsewhere. In reality, though, alcohol use is pervasive in society and physician expert opinion has been divided on whether to tell patients about alcohol use before treating them.
Where disability of the surgeon directly affects surgical performance, the issue of disclosure is more straightforward. In Hawk v Chattanooga Orthopaedic Group,2 apatient injured during a surgical procedure later found out that the surgeon’s Raynaud syndrome affected his hands. The court recognized this as a proper basis for an informed consent medical malpractice action. In contrast, when a physician medical history is unrelated to increased risk to the patient, courts have generally held that physician health, drug, or alcohol use history is not subject to disclosure. Thus, in May v Cusick,3 a surgeon was accused of failing to share his history of stroke: He had had 2 minor strokes with full recovery. In Mau v Wisconsin,4 the accused physician had a history of drug abuse but had been clean for months prior to the alleged incident. In both cases, Wisconsin courts ruled that the physician’s medical history was irrelevant to the chosen course of treatment and therefore could not be implicated in an informed consent claim.
The relationship between disclosure and alleged injury was examined by the court in Halkyard v Mathew.5 In that case, the physician was accused of negligently performing surgery that led to complications. The patient said that had she known of the doctor’s history of epilepsy, she would have chosen another physician. In fact, the physician had not had a seizure at the time of surgery and the outcome was unrelated to either epilepsy or the use of medications to treat the seizures.
In summary, in the several legal cases that have examined the disclosure of physician health status, the decisions appear to turn on the nexus of physician health conditions and how they impact on that physician’s ability to deliver medical care. Cases in which physician health directly affects the risk of health care delivery, such as profound Raynaud syndrome or the HIV-seropositive status of a practicing surgeon, likely would require disclosure for informed consent. Indirectly related conditions, such as well-controlled epilepsy, HIV-seropositive status in a nonsurgical physician, or a prior history of alcohol abuse, are not likely required for disclosure.
Dr Derm may or may not have been negligent in his surgical performance. His prior history of drug abuse is not likely to impact on his case.
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.
1. Teo W, Brenner LH, Bal BS. Medicolegal sidebar: alcohol abuse-patient safety versus surgeon privacy. Clin Orthop Relat Res. 2019;477(3):498-500. doi:10.1097/CORR.0000000000000661
2. Hawk v Chattanooga Orthopaedic Group. 45 SW3d 24 (Tenn App Ct 2000).
3. May v Cusick. 630 NW2d 275 (Wis Ct App 2001).
4. Mau v Wisconsin Patients Comp Fund. 668 NW2d 562 (Wis Ct App 2003).
5. Johnson BJ. Recent decisions: must doctors disclose their own personal risk factors? Halkyard v. Mathew. Health Law Rev. 2001;10(1):18-20.