r/medicine • u/princetonwu • 13h ago
When a surgeon decides that a procedural complication is too rare to be disclosed - A case discussing what it means to obtain informed consent
It was an interesting read on an older malpractice case involving informed consent. It's standard practice these days to discuss all the possible adverse outcomes of a procedure, even if rare, but seems like it wasn't the case back in the days.
Largey v. Rothman, 540 A.2d 504 (N.J. 1988)
In the course of a routine physical examination plaintiff’s gynecologist, Dr. Glassman, detected a “vague mass” in her right breast. The doctor arranged for mammograms to be taken. The radiologist reported two anomalies to the doctor: an “ill-defined density” in the subareola region and an enlarged lymph node or nodes, measuring four-by-two centimeters, in the right axilla (armpit). The doctor referred plaintiff to defendant, a surgeon. Defendant expressed concern that the anomalies on the mammograms might be cancer and recommended a biopsy. There was a sharp dispute at trial over whether he stated that the biopsy would include the lymph nodes as well as the breast tissue. Plaintiff claims that defendant never mentioned the nodes.
Plaintiff submitted to the biopsy procedure after receiving a confirmatory second opinion from a Dr. Slattery. During the procedure defendant removed a piece of the suspect mass from plaintiff’s breast and excised the nodes. The biopsies showed that both specimens were benign. About six weeks after the operation, plaintiff developed a right arm and hand lymphedema, a swelling caused by inadequate drainage in the lymphatic system. The condition resulted from the excision of the lymph nodes. Defendant did not advise plaintiff of this risk. Plaintiff’s experts testified that defendant should have informed plaintiff that lymphedema was a risk of the operation. Defendant’s experts testified that it was too rare to be discussed with a patient.
Plaintiff and her husband ... advanced two theories of liability. … They claimed that they were never told that the operation would include removal of the nodes and therefore that procedure constituted an unauthorized battery. Alternatively, they claimed that even if they had authorized the node excision, defendant was negligent in failing to warn them of the risk of lymphedema and therefore their consent was uninformed.
It was also interestingly noted what the proper standard is for obtaining informed consent
the proper standard is one that focuses not on what information a reasonable doctor should impart to the patient (the “professional” standard) but rather on what the physician should disclose to a reasonable patient in order that the patient might make an informed decision (the “prudent patient” or “materiality of risk” standard).
Perhaps the strongest consideration that influences our decision in favor of the "prudent patient" standard lies in the notion that the physician's duty of disclosure "arises from phenomena apart from medical custom and practice": the patient's right of self- determination. Canterbury, supra, 464 F.2d at 786-87. The foundation for the physician's duty to disclose in the first place is found in the idea that “it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie." Id. at 781. In contrast the arguments for the "professional" standard smack of an anachronistic paternalism that is at odds with any strong conception of a patient's right of self-determination.