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Expansion of Informed Consent: The Duttry Case

The Superior Court's recent decision in Duttry v. Patterson expands the law of informed consent in regard to what information may be relevant to a patient's decision to undergo a surgical procedure. The case specifically holds that information which a patient seeks concerning a doctor's training and experience is germane and, by implication, the decision may make admissible other information not heretofore relevant in informed consent cases.

Historically, the performance of surgery and certain other specified medical procedures have been viewed under Pennsylvania laws an invasion of the patient's physical being and, therefore, their performance requires the "informed" consent of the patient. (For a more complete description of the procedures to which the doctrine of informed consent applies, see 40 P .S. §1301.811.A(a).) In the absence of such consent, the doctor is said to have committed a battery against the patient. Unlike some other states, Pennsylvania does not consider informed consent to be a negligence cause of action.

In assessing whether or not a patient's informed consent has been obtained, Pennsylvania applies the so-called "prudent patient" standard. Under that standard, a doctor is compelled to reveal to a patient all material facts, risks, and alternatives to surgical treatment which a reasonable person would deem to be significant in making the choice whether to undergo the procedure. In order to establish that a given medical complication is a known risk of a procedure, the plaintiff generally must produce expert testimony. The question of whether or not a given risk, once having been established by expert testimony, would be considered material by a reasonable person is ultimately left to the finder of fact.

Against that backdrop comes Duttry. In this case, the plaintiff underwent throat surgery for laryngeal cancer and, in the course of the surgery, she suffered certain complications which led to permanent lung damage. Prior to undergoing the surgery, the patient had asked the surgeon how frequently he performed the proposed surgery , and he answered that he did the procedure approximately once every month. Some time after the surgery, the plaintiff discovered that the doctor had performed the surgery a total of only five times in the previous five years. At the time of tria1, she sought to introduce the surgeon's mis-statement of fact in support of her informed consent claim, but the trial judge ruled that such evidence was irrelevant. The Superior Court, per Judge Del Sole, reversed saying that where a patient affirmatively seeks information concerning a doctor's background and training they are entitled to accurate information, all if they do not receive it, they have a valid informed consent claim.

The court was careful to distinguish its earlier decision in Kaskie v. Wright, 589 A.2d 213 (1991), which held that a plaintiff failed to state a claim for informed consent where they discovered after-the-fact that the surgeon was an alcoholic and lacked a Pa. medical license. The difference, said Judge Del Sole, was that in Kaskie, unlike Duttry, the patient did not affirmatively inquire about the doctor's background prior to consenting to the procedure. This distinction confirms the notion that under Duttry it is the patient's affirmative inquiry which triggers the duty to make an accurate disclosure. In the absence of such an inquiry, one might say that the doctor's duty or disclosure is analogous to the military's rule on homosexuality, i.e. "If the patients don't ask, we don't tell."

How does Duttry impact on current informed consent law? The most immediate effect is to broaden the scope of information which may be relevant and admissible in an informed consent. Prior to this case, the information relevant to an informed consent case was pretty much limited to a description of the medical risks of, and alternatives to, the surgical procedure. Now, however, information concerning a surgeon's professional background is clearly "in play," assuming that the patient affirmatively asks about it. In addition to professional experience, one may postulate that Duttry also makes relevant other information when sought by a patient, e.g. whether any other doctor will be assisting in the surgery, the number of surgeries will be taking place on the same day; the general health of the surgeon. Those subjects and more might now be relevant if the patient affirmatively asks about them. Indeed, some may even argue that Duttry would obligate a physician to give accurate information concerning his personal health if asked by a patient.

While it is clear that Duttry expands the scope of information that may be relevant in an informed consent case, it is less clear whether it alters the prevailing practice whereby the plaintiff who has not received a full description of the risks of a procedure must still convince a jury that the missing information would have been "material" to a prudent patient's decision to undergo surgery. On its face, Duttry appears to declare as a matter of law that the surgeon's alleged misrepresentations concerning his experience was material.

"The question thus becomes whether a reasonable person who questions a doctor about the doctor's personal qualifications and experience, when making a decision about whether to have this individual perform a procedure, would consider this information significant in making the decision. We conclude that a reasonable person would consider it significant and an individual surgeon who provides false information when so questioned would be subject to a claim of lack of informed consent. " Duttry at p. 3.

This language, if applied literally, suggests that on remand the plaintiff will only have to prove that the misrepresentation was uttered by the doctor, the court having already concluded that the subject matter was material. If that is so, then the jury would never have to consider materiality as they historically have done in informed consent cases.

To the extent that Duttry is viewed as eliminating the need to prove materiality, it would represent a major expansion of informed consent liability. However, it is doubtful that Duttry is intended to cause such a drastic change in the legal landscape. For example, consider a situation in which a patient is told by a surgeon that he has performed a procedure 100 times in his career when, in truth, he has only done the procedure 90 times. Assume further that this was an innocent mis-statement by the doctor, i.e., he did not knowingly exaggerate his level of experience. Will a plaintiff be able to prevail simply by proving the inaccuracy without regard to whether a jury thinks the discrepancy is material? Probably not. Thus, Duttry either should not be read as taking the issue of materiality from the jury, or if it does, it should be perceived as a special circumstance in which the court, in essence, was declaring that no reasonable jury could fail to find that the misrepresented information in that particular case was material.

In sum, while it would probably be a mistake to conclude that Duttry eliminates materiality as an element in this genre of informed consent cases. It would not be a mistake to say that it now opens the door to admit a variety of background information on the surgeon, assuming that the patient inquires about such matters. Viewed in that light, Duttry is one of the more significant informed consent cases in the recent years.

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