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    When is physician health disclosure required for informed consent?

    Dr. Drug is a prominent dermatologist in a large metropolitan city. He has been in practice for two decades and has a very good reputation. Three years ago, he performed a surgical excision on his patient. The patient became infected and ultimately suffered endocarditis. Within the two-year statute of limitations, the plaintiff patient files a medical malpractice case against Dr. Drug.

    During the subsequent discovery period, the plaintiff and her attorney find out that Dr. Drug had a history of alcohol abuse. The malpractice claim is amended to include that Dr. Drug’s history of alcohol abuse may have impacted his patients care. In the very least, it is alleged that Dr. Drug had a duty to inform his patients of his history of alcohol abuse. Doing so, they claim, would have been an appropriate part of informed consent. Is this true? Should dermatologists be required to disclose matters of personal health, especially if matters related to physician health may increase the risk of harm to a patient? 

    Several courts have taken on this very issue. In Hiddings v. Williams, a Louisiana state court considered a negligence claim against an orthopedic surgeon in which the patient sustained a neurological injury after surgery and alleged that the doctor should have disclosed his alcohol abuse history. The court agreed that the physician’s failure to inform the patient about his personal alcohol abuse voided the surgical consent. The court reasoned that both alcohol and drug abuse constituted a material risk that increased the risk of injury from surgery and, if disclosed, the patient likely would have sought treatment elsewhere. In reality though, alcohol use is pervasive in society and physician expert opinion has been divided on whether to tell patients about alcohol use before treating them.

    Where disability of the surgeon directly impacts surgical performance, the issue of disclosure is more straightforward. In Hawk v. Chattanooga Orthopedics, a patient injured during a surgical procedure, later found out that the surgeon’s Raynaud’s syndrome affected his hands. The court recognized this as a proper basis for an informed consent medical malpractice action. In contrast, when a physician's medical history is unrelated to increased risk to the patient, courts have generally held that physician health, drug or alcohol use history is not subject to disclosure.

    Thus, in May v. Cusick, a surgeon was accused of failing to share his history of strokes — he had two minor strokes in the past with full recovery. In Mau v. Wisconsin, the accused physician had a history of drug abuse, but had been clean for months prior to the alleged incident. In both cases, Wisconsin courts ruled that the physician’s medical history was irrelevant to the chosen course of treatment and therefore could not be implicated in an informed consent claim.

    The relationship between disclosure and alleged injury was examined by the court in Halkard v. Mathew. In that case, the physician was accused of negligently performing surgery that led to complications. The patient said that had she known of the doctor’s history of epilepsy, she would have chosen another physician. In fact, the physician had not had a seizure at the time of surgery, and the outcome was unrelated to either epilepsy or the use of medications to treat the seizures.

    In summary, in the several legal cases that have examined the disclosure of physician health status, the decisions appear to turn on the nexus of physician health conditions and how they impact that physician’s ability to deliver medical care. Cases in which physician health directly impacts the risk of healthcare delivery, such as profound Raynaud’s syndrome or the HIV seropositive status of a practicing surgeon likely would require disclosure for informed consent. Indirectly related conditions, such as well-controlled epilepsy, HIV seropositive status in a non-surgical physician, or a prior history of alcohol abuse, are not likely required for disclosure.

    Dr. Drug may or may not have been negligent in his surgical performance. His prior history of alcohol abuse is not likely to impact his case.                         

             

    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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