Court Determines Physicians Must Inform Patients of all Non-Doctor Assistants During Surgery to Obtain Informed Consent

An issue that often comes up in Virginia medical malpractice cases is whether the treating doctor adequately warned the patient of the risks associated with a given course of treatment. Earlier this month, an Oklahoma appellate court issued an interesting opinion in a medical malpractice case involving the information that a physician is required to provide to a patient in order to obtain informed consent prior to a medical procedure. Ultimately, the court concluded that a physician must inform a patient of all non-doctor assistants who will be performing significant portions of the procedure in order to obtain the patient’s informed consent.

Informed Consent

Before a patient undergoes any non-emergency medical treatment, the treating physician must obtain that patient’s consent. Over the years, courts have consistently held that a patient must have a certain level of knowledge as to what they are consenting to undergo in order for a patient’s consent to be valid. This is called informed consent. When a physician fails to obtain a patient’s informed consent to perform a medical procedure, and something goes wrong during the procedure, resulting in an injury to the patient, the doctor may be liable under a medical battery theory of liability.

The Facts of the Case

The plaintiff was a patient of the defendant gynecologist. In 2010, the defendant recommended that the plaintiff undergo a total laparoscopic hysterectomy, and the plaintiff agreed. Prior to the surgery, the plaintiff was presented with a consent form that stated that the plaintiff authorizes the defendant and “whomever he/she (they) may designate as his/her assistants, to perform the following operative or diagnostic procedure(s): total laparoscopic hysterectomy.” The informed consent form contained an area designated to list the names of any assistants who would be participating in the procedure; however, that area was left blank.

The defendant recruited the assistance of a nurse with whom she had worked in the past on several occasions. The nurse was an independent contractor hired by the defendant and was not an employee of the hospital. During the procedure, the plaintiff suffered a severed ureter. It was not clear who severed the ureter, but it was undisputed that the nurse performed significant portions of the surgery.

The plaintiff filed a medical malpractice case against the doctor, claiming that she had not provided informed consent to perform the surgery because she was not made aware that a non-doctor assistant would be performing significant portions of the surgery. The court agreed, noting that a patient has a freedom to choose their medical care, and that freedom to choose includes the right to know who will be performing a procedure.

Virginia Medical Malpractice Claims

If you or a loved one has recently been a victim of what you believe to have been negligent medical care, you may be entitled to monetary compensation. Doctors must obtain your informed consent prior to beginning any operation or procedure, and if they fail to do so, they may be liable for any harm you suffered as a result. The Schupak Law Firm is a dedicated Virginia medical malpractice law firm that takes pride in the level of representation it provides to clients. Attorney Sidney Schupak and his colleagues have decades of combined experience assisting the victims of medical malpractice with seeking the compensation they deserve. Call 703-491-7070 to schedule a free consultation with a Virginia medical malpractice attorney today.

See More Blog Posts:

Summary Judgment in Virginia Personal Injury Cases, Virginia Injury Lawyers Blog, July 5, 2017.

Court Determines Accumulated Rainfall May Constitute Dangerous Condition, Depending on Surrounding Circumstances, Virginia Injury Lawyers Blog, June 26, 2017.

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