Never mind that in many professions, including — and somewhat
ironically — the business of law, experienced practitioners (including
judges) routinely rely on highly educated and well-trained assistants
to help them manage their workloads.
Never mind that informed consent has traditionally been obtained
by assistants who not only understand the procedures they're explain-
ing, but who also know the surgeon very well, and know exactly what
that surgeon likes to communicate to patients. Never mind that many
hospitals, surgery centers and surgeons use pre-printed materials and
pre-produced videos to provide patients with a general understanding
of procedures, risks and alternatives. And never mind that great care
goes into the production of those materials, with a goal of making
sure laypeople can understand and comprehend those risks and alter-
natives.
The case in question involved a woman who'd had surgery to
remove a benign, but growing and potentially life-threatening, brain
tumor. Her carotid artery was perforated during the surgery, leading
to hemorrhage, stroke, brain injury and partial blindness.
There was no question that she'd discussed some of the risks with
the surgeon beforehand (she recalled "coma and death"), but the par-
ties disagreed as to whether they'd discussed alternatives. The sur-
geon testified that he'd reviewed the alternatives, risks and benefits of
total versus subtotal resection, and that he informed the patient that
while a less aggressive approach was safer short-term, he felt that the
tumor was more likely to grow back if she opted for subtotal resec-
tion.
Key to the case, the patient eventually agreed to have total resec-
tion, but that decision came after 2 additional conversations with the
surgeon's physician assistant, for whom she signed the informed con-
sent form. That opened the door for a malpractice action premised
Medical Malpractice
MM
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