One of the primary ethical and legal responsibilities of a doctor is to ensure patients are aware of risks involved with proposed medical treatment or procedures. The concept is known as “informed consent.” If a physician fails to obtain informed consent from a patient and that patient suffers injury as a result, this could be grounds for a medical malpractice lawsuit.
Many times, doctors will have patients sign a consent form indicating the risks of a certain treatment. However, it’s worth noting this alone is not necessarily proof of informed consent. The doctor must still talk about the risks with the patient and make sure he or she understands, to the best extent possible, the potential outcomes.
Some exceptions are made in cases of emergencies or when patients are emotionally fragile. However, for the most part, courts hold doctors accountable when they fail to seize on viable opportunities to inform patients of the care they are receiving.
A case recently before the Arkansas Supreme Court dealt with this very issue. In Millsap v. Williams, a divided court reversed an earlier judgment and remanded the medical malpractice case for a new trial on the grounds the jury had not been properly instructed on the issue of informed consent.
As our West Palm Beach medical injury lawyers understand it, the case was brought by the daughter of a man who underwent surgery to remove cancerous tissue on his colon. Defendant doctor performed the surgery, and three days later ordered the placement of a nasogastric tube. This is a tube inserted through the nose that travels into the stomach for use in feeding and administering drugs and other oral agents.
Patient refused the tube several times. The doctor placed the tube anyway, and soon thereafter, patient began showing signs of medical distress. He was then transferred to the critical care unit, and remained in the hospital for two months.
From the time of his discharge until his death nearly a year later, plaintiff alleged her father required constant care and attention.
Daughter filed medical malpractice wrongful death lawsuit against the doctor, alleging the physician placed the tube against patient’s expressed wishes, the tube was placed improperly and as a result, patient aspirated and suffered hypoxic brain injury. An amended complaint indicated the tube was placed on the patient while not mentally competent and further the doctor failed to obtain consent from daughter, as health care power of attorney, for the action.
A nurse testified at trial as to patient’s refusal of the tube, noting he appeared agitated and confused. He was hallucinating, trying to get out of bed and reported seeing chickens. The nurse also testified there was no emergency situation that required placement of the tube, and also she recalled no discussion between doctor and patient concerning the risks or benefits of placing the tube. Even if there was a discussion, she testified, patient likely would not have understood.
Patient fought health care workers as tube was being placed, and nurse testified doctor failed to perform a routine check to ensure the tube was properly placed. Soon after, patient gasped for air, couldn’t breathe and his blood pressure plummeted.
A charge nurse also testified, saying patient expressly told them he did not want the tube because his brother died after placement of such a tube. She too did not recall any emergency situation requiring the tube.
A colorectal doctor also testified that absent an emergency situation, a physician would have to obtain consent of a patient before initiating such a procedure. He said based on a review of medical records, it appeared the unnecessary, improperly-placed tube “undoubtedly” was the primary cause of death.
Yet, a jury found favor with the doctor, choosing not to find him liable for patient’s death.
However, that verdict was reversed when the state supreme court ruled the trial court failed to give proper jury instructions regarding the issue of informed consent. Specifically, jurors were instructed on the fact that informed consent is when a patient consents to a procedure but might have done so with all the information needed to make a reasoned decision. Here, the allegation was the tube was placed without any patient consent.
Thus a new trial will be held.
If you have been injured, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Millsap v. Williams, Nov. 13, 2014, Arkansas Supreme Court
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