A failure of transparency

The patient was planning to have her gall bladder removed. Before the procedure, she met with the surgeon to talk about the risks and the surgeon’s skill and experience with laparoscopic surgery. Among the questions the patient asked: Had the doctor ever been sued for malpractice or had sanctions against his medical license? He said no.

You’ve probably guessed where this is heading. During the surgery the patient’s intestine was perforated and she developed an infection. She later found out the surgeon was disciplined subsequent to having a patient die after undergoing the same procedure.

The woman sued, alleging malpractice and lack of informed consent. She lost. Now the case is headed for a retrial after the U.S. appellate court sided with the plaintiff’s appeal of the verdict. At the heart of the issue is whether the trial court erred in tossing out the argument that the physician’s deceit constituted a breach of the patient’s right to informed consent.

I stumbled across this fascinating legal case this week at the Shrink Rap blog, where it has generated considerable discussion. It raises some compelling questions about patients’ rights to informed consent and the extent of the information physicians should be expected to disclose. Shrink Rap wonders how far it should go:

What if the issue wasn’t technical competence? How much “personal background” should a doctor have to tell a patient before treatment can begin? Medical school grades? Failure to pay income tax? Should doctors be required to disclose to patients the fact that they’ve been treated for mental illness themselves?

Grade point average? Income taxes? I have a hard time picturing any kind of case law that would justify this level of prying. That doesn’t appear to be what this case is about, though. It seems to me that the physician’s competence and experience is highly relevant to informed consent. If this patient had known ahead of time that the surgeon was disciplined following the death of a patient – a death involving the same procedure the patient was about to undergo – it’s possible she would have chosen a different surgeon.

And outright dishonesty adds a whole new wrinkle to the case. Is it ever OK for a physician to dissemble in response to a patient’s question? One of the commenters at Shrink Rap concludes it was “moral turpitude, maybe, but not malpractice… Patients have a right to ask any question they want to ask. Doctors have a right to decline to answer, then the patient can decide how to proceed.”

Others disagreed. From one commenter: “It’s not his right to lie to the patient so they’ll sign the consent form so he can make money.” From someone else:

I disagree about it being an issue of “personal background.” Whether or not the doctor had previously lost patients from that procedure, and whether or not he had had action taken against him is professional background, not personal. “Personal” that it affects only the private life of the individual in question. Just because something could go wrong no matter how skilled the surgeon doesn’t justify lying about the outcome of prior surgeries, especially given that the patient directly asked. It wasn’t a lie of omission, it was a flat-out lie about something that the patient clearly considered important information to their decision about the surgery.

I personally think it was a smart question to ask, and one that most medical professionals shouldn’t hesitate to answer honestly.

It’s actually not that hard to find out whether a physician has a valid license or has ever had sanctions against his or her medical license. In Minnesota, the database is maintained by the Board of Medical Practice and it’s easily searchable online. I’m not sure, however, that we can assume most patients know this. The burden tends to be on consumers to either do their own homework, or to be savvy enough to ask the physician (and hope they get an honest answer).

By sheer coincidence, the Center for Public Integrity issued a report this week that takes policymakers to task for failing to make the National Practitioner Data Bank more accessible to the public. The report notes that while the public can view statistical portions of the NPDB, “the law blocks public users from pulling up histories of individual doctors or other health care professionals. Only authorized users such as hospital administrators can do that. A physician can see only his or her own record.”

Theres a complicated push-and-pull over how much information consumers/patients should have. Where should the boundaries be drawn? How much decision-making power should consumers be given? How much of this power are they capable of handling? We haven’t figured it out yet, and I think we’re going to be debating this for a long time to come. While I don’t expect the retrial of the case involving the dishonest surgeon to completely rewrite case law, perhaps it’ll add another layer of insight into how we define informed consent and what level of disclosure is due between physician and patient.

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