Two state courts, same ruling: Informed consent must include all options

Doctors say the Maryland and Wisconsin decisions could lead to their judgment being second-guessed and undermine patient care.

By Amy Lynn Sorrel — Posted Aug. 24, 2009

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Separate high court rulings in Maryland and Wisconsin may impose greater liability risks on physicians who fail to tell patients about treatment options.

Doctors must inform patients of all relevant treatment alternatives and the risks, according to unanimous decisions issued separately July 24 by the Maryland Court of Appeals and the Wisconsin Supreme Court. The two courts also clarified that proof of medical negligence is not required for plaintiffs to bring an informed-consent claim.

"The gravamen of an informed consent claim ... is a health care provider's duty to communicate information to enable a patient to make an intelligent and informed choice," the Maryland court said. "The law does not allow a physician to substitute his judgment for that of the patient," judges said, citing a court precedent.

Physicians don't deny their responsibility to advise patients about treatment risks. But they say the rulings could do more harm than good to patient care if they have to give patients too much information or if their judgment is second-guessed.

"This brings doctors closer to having to provide a whole universe of information," said Wisconsin Medical Society General Counsel Ruth Heitz. This can be problematic, "particularly when they may not be specialists in all areas." The WMS was not involved in the case.

"No physician wants a patient who is uninformed. But giving them a whole lot of technical information they can't understand or use doesn't increase choice. It makes the right choice less likely," Heitz said.

Maryland medical liability defense attorney J. Mark Coulson said the ruling there gives plaintiffs another avenue for recovery even when a doctor has met the standard of care.

"This opens up the area of physician judgment to patient override and gives the jury two bites at the apple on liability," said Coulson, an executive committee member of the Maryland Defense Counsel Inc. The trade organization was not tied to the state case. MedChi, the Maryland State Medical Society, was not involved in the case but is monitoring the ruling's impact.

Plaintiff lawyers, on the other hand, view the decisions as a reaffirmation of doctors' existing obligations to continuously involve patients in medical decision-making.

"Why should a doctor decide whether a patient gets a particular therapy, or surgery or nothing?" asked Henry E. Dugan Jr., a plaintiff attorney in the Maryland case. "Any one of those may be acceptable to the medical profession, but not necessarily to the individual patient. So why shouldn't the patient have a say?"

A duty to inform

The Wisconsin case heads back to a trial court to decide if there were other reasonable treatment options for Richard Bubb, who presented in a hospital emergency department in 2001 with stroke-like symptoms. After several tests and an improvement in Bubb's condition, emergency physician William Brusky, MD, discharged him and arranged follow-up care with a neurologist.

Before that appointment, however, Bubb had a large-scale stroke. He alleged that Dr. Brusky had failed to inform him of the option to stay in the hospital for an ultrasound that could have detected the problem more quickly.

Meanwhile, the Maryland decision reinstates a $13 million verdict against ob-gyn Donald Spangler, MD, after a jury found that he failed to offer Peggy McQuitty the option of an immediate C-section when an abnormality was detected in an ultrasound. In 1995, Dr. Spangler counseled the woman, who was 32 weeks pregnant, to continue the pregnancy to prevent the risks of premature delivery, and after monitoring the abnormality, planned to schedule a C-section. Before then, however, McQuitty had a complete placental abruption, requiring an emergency procedure. Her son was born with cerebral palsy.

Juries in both cases found no deficiencies in the doctors' care. The physicians argued that because they adequately informed the patients of the diagnosis and proposed treatment, they should not be held liable.

The Maryland and Wisconsin high courts found that the other treatment options were equally valid under the standard of care and that juries could conclude physicians should have disclosed them to their patients. The courts said informed consent claims depended not on the doctors' actions, but on a patient's right to know.

"These are two separate responsibilities," said Lynn R. Laufenberg, past president of the Wisconsin Assn. for Justice. The trial lawyers organization filed a friend-of-the-court brief in the Wisconsin case.

The Wisconsin Supreme Court reaffirmed that state law requires doctors to tell patients about "all alternate, viable medical modes of treatment, including diagnosis, as well as the benefits and risks of such treatments."

Maryland judges similarly found that doctors could be liable for withholding or failing to provide information relevant to deciding a particular course of treatment. In a rare move, the court concluded that a precedent was interpreted incorrectly as limiting informed consent claims to cases in which a patient underwent a medical procedure and the doctor failed to inform the patient of the risks of that treatment.

How much is enough?

The two courts noted certain limitations on doctors' duties. For example, physicians are required to divulge only those treatment risks and options that a reasonable patient would want to know if faced with the same care decision. Plaintiffs still must prove that another treatment option, if chosen, would have prevented the alleged harm, Laufenberg said.

The Wisconsin court cited other specific exceptions in its statute that do not require disclosure of information beyond what a doctor in a similar field would know, or technical information a patient would not understand.

But the court's decision appears to erode those exceptions, the Wisconsin Medical Society's Heitz said. "As technology advances and there are more and more options, the question is where do you draw the line? And doctors who are not specialists may be left wondering: How much do I need to do?"

Defense attorney Coulson said the Maryland decision similarly expands on doctors' obligations and puts them in the position of having to consult patients on treatment decisions every step of the way.

"Patients should be involved in the conversation, but it's unfair to boomerang all medical decisions back to them when they are not equipped to make calls on a moment-to-moment basis," he said. "At some point, patients have the right to rely on a doctor's expertise, recognizing that [physicians] will be held to the standard of providing reasonable care. That was always the dividing line between informed consent and negligence. Now it's everything with the 20/20 hindsight litigation has."

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Cases at a glance

Can patients sue doctors for failing to provide enough information on treatment risks and alternatives?

The Maryland Court of Appeals and Wisconsin Supreme Court said yes, in separate rulings.

Impact: Physicians say the decisions expand their obligations under state informed-consent laws and will harm patient care if doctors have to overexplain their medical judgment. Plaintiff attorneys say the rulings reaffirm patients' rights to be involved in their care.

Dylan McQuitty v. Donald Spangler, MD, Maryland Court of Appeals; Richard Bubb v. William Brusky, MD, Wisconsin Supreme Court

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