Med mal: Was your consent to surgery “informed consent”?
Poor Mr. Yentes. He developed complications after undergoing a robotic prostatectomy, and sued his doctor for not revealing that the doctor had never performed the procedure, or had only performed it on a limited basis and that there would be a proctor (teacher) attending as well.
If he had known, Mr. Yentes claimed, he never would have consented to the operation. He even filed an affidavit by a board certified expert stating that the failure to inform the patient of the physician’s limited experience in performing the procedure was a “deviation from the standard of care” for which the physician would be liable for medical malpractice.
The Florida’s medical consent law says that a doctor is immune from suit for operating on a patient who has consented in accordance “with the standard of practice”. The law requires disclosure of the risks inherent in the procedure, but does it also require disclosure of how many times a physician has performed the procedure? So was the consent obtained really “informed?”
The trial court threw out Mr. Yentes’ case, but the appellate court threw it right back, overruling the trial court and allowing Mr. Yentes to have his day in court and tell his story to a jury. At trial, there will be two issues: first, was Mr. Yentes informed in accordance with the appropriate standard of care, and second, whether a reasonable patient would have foregone surgery if there had been disclosure.
The case may signal a change in how medical malpractice victims’ contest the doctors’ defense of informed consent, particularly where, as here, the physician’s experience is an issue.
