Court looks at consent in emergencies

New Jersey's top court will decide if physicians should have obtained informed consent from a patient's family when a postoperative complication arose.

By Amy Lynn Sorrel — Posted Dec. 18, 2006

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In a case that doctors say could significantly impact medical decision-making in life-threatening circumstances, the New Jersey Supreme Court will decide to what extent doctors must get informed consent before treating patients in emergencies.

If the court rules physicians must get consent, it could delay treatment critical to saving a patient's life; but if doctors don't first get consent to an emergency procedure, they risk getting sued, said Judith A. Wahrenberger, who represents cardiothoracic fellow James B. Hunter, MD, one of the doctors at the center of the case.

"It leaves doctors in the uncomfortable position of not being sure how a situation will be interpreted, and then you're in the dilemma of compromising patient care because you've done what you needed to do to get informed consent," she said.

Under New Jersey law, like most states, informed consent is required for any procedure or treatment, except under emergency circumstances.

Attorneys say that the court will likely open up the question of what constitutes a medical emergency when they look at whether informed consent should be required in certain situations. Doctors fear that if the court puts parameters on informed consent in emergencies, patient care will be put in jeopardy if juries can second-guess their judgment.

"It's a technical decision that needs to rest in the hands of physicians and their relationship with the circumstances at the time," not the courts, said Matthew M. Rice, MD, an attorney and former chair of the medical legal committee

The Medical Society of New Jersey said it is considering whether to join the case in the form of a friend-of-the-court brief.

Adam M. Slater, attorney for the patient's family in the case, said that even though there was a medical emergency in this instance, there was enough time to get the family's consent before sending a doctor who was not board certified to perform a heart procedure on their mother. He said that the patient's daughter was down the hall from where the emergency surgery was done, and her son, a physician, was reachable by phone.

"Sometimes doctors need to make quick decisions, but you also have to look at the situation," Slater said. "Patients want to be a part of the decision-making."

A question of consent

The issue before the high court stems from the wrongful-death suit the family of 71-year-old Geraldine Liguori filed. The woman died after complications following a quadruple bypass heart surgery in December 1999.

Liguori's primary cardiothoracic surgeon was in another surgery when, about two hours after the bypass, the patient developed a large left-sided pneumothorax, court records show. The surgeon sent Dr. Hunter, who assisted in the bypass surgery, to insert a chest tube.

Dr. Hunter, who is not board certified because he did not complete his residency training, did the emergency procedure about 20 to 25 minutes later, without obtaining consent from the family, legal documents state.

Soon after the surgery ended, a nurse again notified Liguori's primary surgeon that Liguori was bleeding from a pericardial tube. The surgeon sent a third doctor to assess the patient. That doctor found and repaired a hole in Liguori's heart, which court testimony shows was related to the tube insertion.

Lawyers agree the injury occurred from the tube insertion; however, Dr. Hunter and his attorneys say no negligence was involved.

Liguori died in February 2000 from a series of complications stemming from the injury, according to court records.

"All witnesses testified that [Liguori's] condition was a life-threatening emergency ... and emergencies have traditionally been recognized as exceptions to the informed consent doctrine," the May 3 appeals court opinion stated. The ruling affirmed the trial court's dismissal of the claim against Dr. Hunter.

The appeals court agreed with Dr. Hunter that "taking the time to [get informed consent from Liguori's daughter] could have been detrimental to [Liguori's] treatment."

The family is appealing the case and has said that had they known Dr. Hunter was doing the procedure, they would have asked for an attending surgeon instead.

"That would have taken two minutes. They had 25," Slater said.

He noted that informed consent requirements apply "not just to the procedure, but also who's going to perform it."

Doctors should be held to a reasonable standard and shouldn't be immune from having to seek informed consent in every medical emergency, Slater said.

Wahrenberger, Dr. Hunter's attorney, countered that consent to surgery also includes consent to the follow-up treatment.

Doctors don't dispute that, whenever possible, they should obtain informed consent from the patient, or his or her family before a procedure.

American Medical Association policy states that informed consent, which includes information about a diagnosis, treatment options and any associated risks, is appropriate in all cases, except where there would be an immediate harm from failing to treat the patient right away.

ACEP's Dr. Rice said patients have to be able to have some say in what happens with their own health. But he said, "If doctors can't do what's right relative to a patient to save their life, it's going to have a significant chilling effect on physicians' decisions to intervene when a situation is not perfectly clear, and delay important care."

No date for oral arguments has been scheduled.

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Case at a glance

Liguori v. Elie Elmann, MD, James B. Hunter, MD, et al.

Venue: New Jersey Supreme Court
At issue: To what extent, if any, doctors need informed consent from patients, or their family members, in an emergency medical situation.
Potential impact: Physicians say a delay in getting consent in a life-threatening circumstance could further harm patients. If the court were to require it, and doctors forgo consent to save a patient, they could risk getting sued. The plaintiff attorney says that not all emergencies are so immediate that doctors don't have time to seek consent.

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