Consent based on "reasonable person" standard

For the second time, a New Jersey Appellate Court has ruled that a woman claiming that her physician failed to obtain her informed consent before performing an abortion should have her day in court.

Sheldon C. Turkish, MD, an obstetrician-gynecologist from Perth Amboy, N.J., twice has been successful in convincing a Middlesex County trial court that patient Rose Acuna's claim of negligent infliction of emotional distress against him should be dismissed.

Both times, however, Acuna has appealed the decision to the Superior Court of New Jersey, Appellate Division, and that court has overturned the lower court -- albeit on different grounds -- and sent the case back for a jury to decide whether the physician was negligent.

The lawsuit stems from a conversation between Acuna and Dr. Turkish that took place in April 1996. And informed consent is at the heart of the issue.

According to court records, Acuna consulted Dr. Turkish, who had delivered her second child, because she was having abdominal pain. He examined her and found that she was pregnant for the fourth time, and that the pregnancy was in its sixth or seventh week. He advised her that she should terminate the pregnancy for medical reasons. Three days later she signed a consent form and had the abortion.

Acuna testified in her deposition that during her initial conversation with Dr. Turkish she asked him if "there was baby in there" and that Dr. Turkish replied "don't be stupid, it's only blood."

In his deposition, Dr. Turkish testified that he did not remember Acuna asking that question. But he said that if she had asked, he would have answered that a seven-week pregnancy is not a living human being.

After the abortion, Acuna continued to bleed for several weeks and, according to court records, she was taken to Robert Wood Johnson Hospital in Hamilton, N.J., where she was diagnosed with an incomplete abortion. Acuna said that while she was in the hospital, one of the nurses explained to her that a dilatation and curettage procedure was necessary because Dr. Turkish had "left parts of the baby inside of her."

In August 1998, Acuna sued Dr. Turkish, claiming that he had failed to inform her that the fetus was a "complete, separate, unique and irreplaceable human being" and that as a result, she had consented to an abortion based on erroneous information. Acuna's original complaint also included a wrongful death claim, but the appellate court upheld the dismissal of that part of the lawsuit.

Appeals court reinstates case twice

In its first go-round at the informed consent issue in 2004, the appellate court ruled that the trial court judge should not have dismissed the claim on the grounds that a fetus was not a "constitutional person" under Roe v. Wade.

"The fact that a fetus may not be a 'person' under the Fourteenth Amendment is irrelevant because the plaintiff's claim is not dependent on whether or not the fetus enjoys a constitutional status as a 'person.' The claimed malpractice committed by defendant was directed against plaintiff as an expectant mother," the 2004 ruling said.

After the case was sent back to the trial court, extensive discovery took place, according to court records. The court assigned a new trial judge to the case and Dr. Turkish once again asked that the action be dismissed.

The judge agreed, ruling that Acuna was asking Dr. Turkish to make a value judgment, not a statement of medical fact. Acuna once again appealed.

In its second opinion on the matter, the appellate court started its analysis by noting that part of Acuna's appeal was based on the incorrect premise that the court already had ruled in this case that "a doctor must disclose that a pregnant mother's unborn child is in existence before she can make an informed decision of whether or not to submit to the procedure."

Not so, the court said.

"Requiring a physician to give information 'regarding the status of the fetus and all other facts that may be deemed material in making that choice' is very different than requiring a physician to disclose to a pregnant mother that 'her unborn child is in existence before she can make an informed decision on whether or not to submit to the procedure,' " the judges wrote.

The court also said it was clear that Acuna believes that there was a single, correct answer to her question about whether "there was a baby in there, " and that only an affirmative answer would have discharged Dr. Turkish's obligation to provide informed consent.

Defining her claim on her subjective interpretation is not helpful to her informed consent case, the court said. Obviously, the term "baby" meant something different to her and Dr. Turkish. "For her, it meant an embryo or fetus; for the doctor, a human being following birth," the court said.

But despite disagreeing with Acuna on her interpretation of its earlier decision and her argument that there was a single correct answer that Dr. Turkish failed to provide, the appellate court ruled in her favor.

Why?

Because the law loves a reasonable person. Legal analysis in several areas of the law is based on what the reasonable person would do or think. It is an objective standard and, the court said, an objective standard is the standard to use when considering informed consent cases.

The standard, the court said, is derived from what a reasonably prudent patient would deem to be significant to a decision rather than what any particular patient believes.

In reversing the lower court's dismissal, the appellate court applied several "well-settled" principles of informed consent to the record in the case.

Under these principles, a physician has a duty to:

• Obtain a patient's informed consent before treating or operating on that patient.
• Explain, in terms understandable to the patient, what the physician intends to do.
• Explain all material medical information and risks. Medical information is relevant when a reasonable patient would likely attach significance to it when deciding whether to submit to treatment.
• Disclose any alternative medical treatments that might not be recommended.

The court is clear that the issue presented by this case is a narrow one: What medical information is material and must be disclosed by an obstetrician when advising a patient to terminate a pregnancy and what medical information is material when a patient asks if the "baby" is already "there?"

The court said that although both sides will be allowed to address the issue with expert testimony, the issue is to be decided by a jury that will be required to use the reasonably prudent patient standard to reach its conclusion.

Dr. Turkish is asking the New Jersey Supreme Court to review the case.