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    Losing a malpractice case may depend on where you live

    'Reasonable medical practitioner' or 'reasonable patient' jurisdictions can affect outcome of case

    Dr. Suit has surgically removed a melanoma in situ from the face of his patient, Ms. Doe. He has warned her about the risks of infection, bleeding and scarring. The surgery is performed without difficulty.

    Unfortunately, some five days after surgery, Ms. Doe develops cellulitis and ultimately sepsis. After a lengthy hospitalization, loss of her job and a newly developed fear of physicians, she sues Dr. Suit for negligence. The crux of her case is based on the fact that although she was warned about the possibility of infection, Dr. Suit should have explained to her that infection could lead to sepsis and possibly death.

    Should Dr. Suit have discussed that infection can lead to sepsis? Was his warning about the risk of infection enough? What is he required to disclose during his informed consent with his patient?

    There are currently two different standards as to what a physician must disclose to his patient. They are: 1) a physician-centered standard and 2) a patient-centered standard. The first court to express a physician-centered standard was Natanson v. Kline in 1960. In Natanson, the patient underwent cobalt radiation therapy to prevent the return of her breast cancer after a mastectomy. The patient sued her physician, claiming the physician was negligent in not warning her of the risks of radiation therapy, which resulted in severe injury.

    The court stated that the physician must “disclose and explain to the patient in language as simple as necessary the nature of the ailment, the nature of the proposed treatment, the probability of success or of alternatives, and perhaps the risks of unfortunate results and unforeseen conditions within the body....” This standard is the language most courts use today in defining what must be disclosed to get informed consent.

    The court noted that: “Anglo-American law starts with the premise of thoroughgoing self-determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of life-saving surgery, or other medical treatment. A doctor might well believe that an operation or form of treatment is desirable or necessary, but the law does not permit him to substitute his own judgment for that of the patient by any form of artifice or deception.”

     

    GoldbergDavid.jpg
    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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