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Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, Mt. Sinai School of Medicine, and Adjunct Professor of Law, Fordham Law School.
In this month’s Legal Eagle article, David J. Goldberg, M.D., J.D., discusses the different professional standards of disclosure that a physician must fulfill when treating patients.
Dr. Lose has surgically removed an invasive squamous cell carcinoma from the face of his patient Ms. Doe. He has warned her about the risks of infection, bleeding and scarring. The surgery is performed without difficulty. Unfortunately, some five days after surgery, Ms. Doe develops cellulitis and ultimately sepsis
After a lengthy hospitalization, loss of her job and a newly developed fear of physicians, she sues Dr. Lose for negligence. The crux of her case is based on the fact that, although she was 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 discussed that infection can lead to sepsis? Was his warning about the risk of infection enough? What should he have disclosed during his informed consent with his patient?
There are currently two different standards as to what a physician must disclose to a patient; they are:
The first court to express a physician-centered standard was Natanson v. Kline in 1960. In this case, the patient underwent cobalt radiation therapy to prevent the return of her breast cancer, after a mastectomy. The patient sued her physician, claiming that the physician was negligent in not warning 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 standard is the language most courts use today in defining what must be disclosed to get informed consent.
This court was the first to create the “professional standard” of disclosure when it held that the “duty of the physician to disclose…is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances.”
In 1972, three different courts modified the Natanson standard by holding that the disclosure standard was what a patient would reasonably need to know in order to make an informed decision rather than what a reasonable physician would disclose. This reasonable patient standard — more than the reasonable practitioner standard — would give a patient even more autonomy and right of self-determination. It should be noted that the patient-centered standard remains the minority view in this country.
In Wilkinson v. Vesey, a patient underwent radiation therapy after the physician diagnosed probable lymphoma. As a result of the radiation therapy, the patient’s skin on his chest and back necrosed and eventually required plastic surgery. The patient sued the physician, claiming the physician failed to disclose all possible risks of the radiation therapy, thus failing to get the patient’s consent.
The Wilkinson court criticized the physician-centered standard on what to disclose. The Wilkinson court noted that the requirement of expert testimony undermines the fundamental principle underlying the doctrine of informed consent, which is the patient’s right to do as she wishes with her own body. The court held, “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.”
It would seem likely that Dr. Lose, in a “reasonable medical practitioner” jurisdiction, is not likely to lose his case. In a “reasonable patient” jurisdiction, the final conclusion is not so clear.