What you need to know
to
protect yourself
by Richard J. Kasson Brin & Brin, PC
As a medical malpractice defense lawyer, I am amazed at how many of my physician clients do not know the legal significance and ramifications surrounding informed consent in the context of defending a lawsuit. Recently, I defended a local obstetrician on an informed consent claim involving a shoulder dystocia (SD)/brachial plexus injury, and my client quickly learned how dangerous these types of claims can be if the procedure you are performing is alleged to be neither a Texas Medical Disclosure Panel’s “List A” or “List B” procedure.
Article 4590i (now repealed) provisions on informed consent created the Texas Medical Disclosure Panel to determine which risks and hazards must be disclosed to patients prior to undergoing a particular procedure or surgery. For “List A Procedures,” the panel sets forth exactly what risks must be disclosed and they are almost always found attached to any Surgical Consent and Disclosure Form. Once the disclosure form is signed by the patient or legal representative and they provide their initials by the particular List A procedure’s laundry list of required disclosures, a rebuttable presumption is created that informed consent was obtained. The only way the presumption can be overcome is if the plaintiff proves the patient lacked the capacity to give informed consent. (a minor, influence of medication or other factors) See TEX. ADMIN. CODE §601.2; TEX.CIV.PRAC.& REM. CODE §74.101 – 74.107 (replacing 4590i). List B procedures have been determined by the panel to be so minimal in their risks that no disclosure of any kind is required by the physician.
The greatest risk of liability occurs when the physician performs a procedure that is neither List A nor List B. In my obstetrician client’s case, it was the performance of an operative vaginal delivery (instruments) which the plaintiff’s lawyer argued took the case out of the List A “vaginal delivery” (spontaneous) and removed our safety blanket of the rebuttable presumption defense. When the procedure at issue is neither List A or B, the law turns on its face. The typical question of what an ordinary, prudent physician might do under the same or similar circumstances no longer exists. Instead, the jury will consider the question of whether the physician disclosed risks inherent to the procedure that could influence a reasonable person in making a decision to give or withhold consent to such treatment.
This puts the defendant physician in a very difficult position. As commonly occurs, if the physician has not charted exactly what risks were disclosed or does not remember what was disclosed, the plaintiff is in the easy position of denying disclosure of the particular risk, and can easily persuade the jury that had such disclosure been made he/she would not have consented to the treatment and the harm/injury could have been avoided. In our case, it was the alleged failure to disclose increased risks of shoulder dystocia with the use of instruments, and our client conceded he made no such disclosures during the delivery.
Our defense experts agreed and the literature shows there is increased risk of SD with the use of instruments. In addition, everybody agreed that had a cesarean been performed, the SD and resulting brachial plexus injury would not have occurred. Accordingly, if the jury was asked the “what would a reasonable person want to know” question, we most assuredly would have lost and a permanently injured child would have been awarded damages for life-long pain and suffering, mental anguish and disfigurement.
Luckily, our trial judge was not persuaded by plaintiff counsel’s argument that the use of instruments changed the procedure from a List A “vaginal delivery” to a non-List A or List B “operative vaginal delivery.” The Court agreed that the use of instruments did not take the procedure out of List A and granted our client an instructed verdict on the informed consent claim because the plaintiff offered no evidence to rebut the presumption of informed consent.
I am confident the jury would have found against us had the judge failed to toss out plaintiff’s informed consent claim on legal grounds. While we may have prevailed on appeal if it became necessary, our case is a good example of how scary a non-List A or List B informed consent claim can be for a physician. To protect yourself, make sure you familiarize yourself with which procedures are either List A or List B. They are found in Title 25, Chapter 601 of the Texas Administrative Code.
If you are performing a List A procedure, make sure the consent form is properly signed and initialed by the patient or someone who is authorized to sign on behalf of the patient. Do not rely on the nurses because it is the physician’s non-delegable duty to make sure proper consent is obtained. Over the years I have seen many questionable consent forms in cases where informed consent has not been at issue but could have been if the plaintiff lawyer picked up on it.
If you are performing a procedure that is not on either List, make sure you disclose the inherent risks and specifically chart those risks. Avoid the generic charting of “risks disclosed and the patient understands” since such charting only creates a “swearing match” as to what was specifically disclosed. Chart each risk separately so you or your lawyer will have a much easier time defending your conduct when there is a bad outcome and your patient brings a malpractice claim.
