Wednesday, March 17, 2010

Is It Malpractice To Lie?


I came across this interesting malpractice case via the HealthLaw Twitter feed which I've been following for a while now. The case is Willis v Bender, a 10th Circuit Court of Appeals case out of Wisconsin.

In this case a surgeon was sued by his patient following complications from a laparoscopic cholecystectomy (gall bladder removal). Before the procedure he explained the risks of the surgery to her, and she also asked him questions about his experience and success rate with the procedure. She asked additional questions about whether he had ever been sued for malpractice or had any action taken against his medical license. He answered no to both questions and added that he had an almost perfect success rate with the surgery. Well, bad things happened. The patient suffered a perforated intestine and an infection. She later found out that the doctor had lost a patient during this same procedure, and that he was disciplined for the board as a result of that case.

At trial the jury found in favor of the doctor because even the plaintiff's expert couldn't say that the complications were the direct result of improperly performed surgery. Even properly done surgery of this type carried the risk of perforation, bleeding and infection. The plaintiff also alleged that the doctor failed to give her informed consent because he gave false information about his personal background. The trial court wouldn't allow the informed consent issue to be raised because in Wisconsin the law only required that physicians tell patients the material risks of proposed treatment. There was no affirmative duty to disclose professional background information even when asked.

So the plaintiff appealed.

The 10th US Court of Appeals reviewed various similar informed consent cases and found that courts took different views on whether or not lying to a patient about a physician's background could be considered a breach of informed consent. Some courts held that doctors could be found liable only if they lied regarding the risks of the proposed treatment. In this case, the appellate court decided that the patient should have had a chance to make the argument, and sent the case back for retrial on that issue.

We'll see what ends up happening on retrial, but I thought this was an interesting emerging area of law. What if the issue wasn't technical incompetence? How much "personal background" should a doctor have to tell a patient before treatment can begin? Medical school grades? Failure to pay income tax? Should doctors be required to disclose to patients the fact that they've been treated for mental illness themselves?