gavel.gif (3462 bytes) Medical Malpractice

Doctor does not have to release personal 
information to receive informed consent

A patient cannot sue a doctor for failing to reveal personal information in obtaining informed consent, says the Pennsylvania Supreme Court in the case of Duttry v. Patterson. This reverses the Superior Court�s decision.

In the opinion, the Supreme Court said, "we hold that information personal to the physician, whether solicited by the patient or not, is irrelevant to the doctrine of informed consent. Our holding should not, however, be read to stand for the proposition that a physician who misleads a patient is immune from suit. Rather, we are merely stating that the doctrine of informed consent is not the legal panacea for all damages arising out of any type of malfeasance by a physician."

According to the opinion, Cloma Duttry was diagnosed with esophageal cancer in 1989. During a consultation with Dr. Lewis Patterson, Duttry asked about his experience in performing the operation recommended for her condition. Patterson supposedly told Duttry he had performed the procedure approximately once a month, or 60 times. Duttry ultimately consented to the operation, which was performed by Patterson.

A leak developed at the site of the surgery a few days after the procedure and required emergency surgery. Duttry claimed in her lawsuit against Patterson, Patterson Associates, and the Polyclinic Medical Center, that there was a lack of informed consent. Duttry contends that she has permanent damage to her lungs and other complications associated with the surgery, causing her to be unable to work.

At trial, evidence was presented that showed Patterson had only performed the surgery a total of nine times in five years. Duttry claimed that this was relevant to the informed consent claim. The trial court found that such information was relevant to the case, as Duttry may not have elected to have surgery if she knew the information.

On appeal, the Supreme Court reversed. The opinion stated that the "informed consent doctrine requires physicians to provide patients with "material information necessary to determine whether to proceed with the surgical or operative procedure or remain in the present condition." The court defined "material information" as, "a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results."

"We hold that evidence of a physician�s personal characteristics and experience is irrelevant to an informed consent claim; such a holding is more in keeping with our case law than the approach taken by the Superior Court. Furthermore, we note that this holding does not shift depending upon whether a patient inquires as to the physician�s experience."


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