Chat with AI
Legal Aspects Of Health Care Administration 11th Edition by George Pozgar
Edition 11ISBN: 978-0763780494Legal Aspects Of Health Care Administration 11th Edition by George Pozgar
Edition 11ISBN: 978-0763780494 Exercise 5
Facts
The plaintiff, Ashe, was diagnosed with breast cancer in 1988. She underwent a double mastectomy and chemotherapy. In 1993, she began experiencing problems with a cough and a fever. She returned to her oncologist, Dr. Kuzu, where she presented a variety of symptoms, including fever, cough, weight loss, and decreased appetite. A chest x-ray and a computed tomography (CT) scan revealed the presence of a mass in her left lung.
Ashe underwent surgery, and the upper portion of her left lung was removed. She underwent chemotherapy and was referred to the defendant, Dr. Stroup, for consideration of radiation therapy.
Stroup prescribed radiation treatment for Ashe. She received a daily dose of 200 cGy for 25 days. Ashe sustained radiation myelitis caused by a permanent radiation injury to her spinal cord. She is now a paraplegic.
Stroup did not inform Ashe that the radiation treatment might result in a permanent injury to her spinal cord. According to Stroup, the risk that she would sustain a spinal cord injury was less than 1%. Ashe's expert, Dr. Perez, stated that the risk of spinal cord injury was 1% to 2%. Perez testified that the applicable standard of care required physicians to warn patients about the risk of radiation injury to the spinal cord.
Ashe filed an action alleging claims for medical malpractice and lack of informed consent. At trial, she testified that she would not have consented to radiation therapy had she been informed of the risk of paralysis. On cross-examination, defense counsel pointed out that the plaintiff did equivocate in her deposition on the issue of consent. Her deposition testimony indicated that she did not know what she would have done had she been warned about the risk of spinal cord injury. She then testified on redirect examination that if Stroup had said to her, "'Patty, if you do this, there is a risk that you will be in a wheelchair six months from now,' I would have told him, 'I will take my chances.' I would not have it done."
The trial court found that the plaintiff's trial testimony conflicted with her deposition testimony regarding whether she would have consented to the procedure had she been warned of the risk of spinal cord injury. The trial court, therefore, struck the trial testimony and granted the defendant a directed verdict on the informed consent claim. The plaintiff's malpractice claim went to the jury. The jury was unable to reach a verdict, and a mistrial was declared.
The plaintiff appealed to the court of appeals. The court of appeals held that, as part of the plaintiff's informed consent claim, she was required to prove that a reasonable person knowing of the risk for spinal cord injury would have decided not to have the procedure performed. The court held that the discrepancy between the trial and deposition testimony went to the issue of credibility and that the trial testimony should not have been stricken. The court of appeals reversed the trial court's grant of a directed verdict on the informed consent claim and remanded the case for a new trial.
Issue
What is the appropriate standard to be employed when assessing the issue of causation in a medical malpractice informed consent case?
Finding
Causation in informed consent cases is better resolved on an objective basis. The standard to be applied in informed consent cases is whether a reasonable person in the patient's position would have consented to the procedure or treatment in question if adequately informed of all significant perils.
Reason
In Tennessee, the plaintiff in an informed consent medical malpractice case has the burden of proving: (1) what a reasonable medical practitioner in the same or similar community would have disclosed to the patient about the risk posed by the proposed procedure or treatment; and (2) that the defendant departed from the norm.
The issue with which the court was confronted was whether an objective, subjective, or a hybrid subjective/objective test should be employed when assessing causation in informed consent cases. The majority of jurisdictions in Tennessee having addressed this issue follow an objective standard.
Subjective Standard: The subjective standard relies solely on the patient's testimony. Patients must testify and prove that they would not have consented to the procedure(s) had they been advised of the particular risk in question. Proponents of the subjective standard argue that a patient should have the right to make medical decisions regarding his or her care regardless of whether the determination is rational or reasonable. The subjective standard, however, potentially places the physician in jeopardy of the patient's hindsight and bitterness. The subjective standard is premised on the credibility of a patient's testimony.
Objective Standard: When applying the objective standard, the finder of fact may also take into account the characteristics of the plaintiff, including the plaintiff's idiosyncrasies, fears, age, medical condition, and religious beliefs. Accordingly, the objective standard affords the ease of applying a uniform standard and yet maintains the flexibility of allowing the finder of fact to make appropriate adjustments to accommodate the individual characteristics and idiosyncrasies of an individual patient. The standard to be applied in informed consent cases is whether a reasonable person in the patient's position would have consented to the procedure or treatment in question if adequately informed of all significant perils.
Under the objective analysis, the plaintiff's testimony is only one factor when determining the issue of informed consent. The issue is not whether Ashe would herself have chosen a different course of treatment. The issue is whether a reasonable patient in Ashe's position would have chosen a different course of treatment. The jury, therefore, should have been allowed to decide whether a reasonable person in Ashe's position would have consented to the radiation therapy had the risk of paralysis been disclosed.
Would the outcome of this case have been different if a subjective standard had been applied? Discuss your answer.
The plaintiff, Ashe, was diagnosed with breast cancer in 1988. She underwent a double mastectomy and chemotherapy. In 1993, she began experiencing problems with a cough and a fever. She returned to her oncologist, Dr. Kuzu, where she presented a variety of symptoms, including fever, cough, weight loss, and decreased appetite. A chest x-ray and a computed tomography (CT) scan revealed the presence of a mass in her left lung.
Ashe underwent surgery, and the upper portion of her left lung was removed. She underwent chemotherapy and was referred to the defendant, Dr. Stroup, for consideration of radiation therapy.
Stroup prescribed radiation treatment for Ashe. She received a daily dose of 200 cGy for 25 days. Ashe sustained radiation myelitis caused by a permanent radiation injury to her spinal cord. She is now a paraplegic.
Stroup did not inform Ashe that the radiation treatment might result in a permanent injury to her spinal cord. According to Stroup, the risk that she would sustain a spinal cord injury was less than 1%. Ashe's expert, Dr. Perez, stated that the risk of spinal cord injury was 1% to 2%. Perez testified that the applicable standard of care required physicians to warn patients about the risk of radiation injury to the spinal cord.
Ashe filed an action alleging claims for medical malpractice and lack of informed consent. At trial, she testified that she would not have consented to radiation therapy had she been informed of the risk of paralysis. On cross-examination, defense counsel pointed out that the plaintiff did equivocate in her deposition on the issue of consent. Her deposition testimony indicated that she did not know what she would have done had she been warned about the risk of spinal cord injury. She then testified on redirect examination that if Stroup had said to her, "'Patty, if you do this, there is a risk that you will be in a wheelchair six months from now,' I would have told him, 'I will take my chances.' I would not have it done."
The trial court found that the plaintiff's trial testimony conflicted with her deposition testimony regarding whether she would have consented to the procedure had she been warned of the risk of spinal cord injury. The trial court, therefore, struck the trial testimony and granted the defendant a directed verdict on the informed consent claim. The plaintiff's malpractice claim went to the jury. The jury was unable to reach a verdict, and a mistrial was declared.
The plaintiff appealed to the court of appeals. The court of appeals held that, as part of the plaintiff's informed consent claim, she was required to prove that a reasonable person knowing of the risk for spinal cord injury would have decided not to have the procedure performed. The court held that the discrepancy between the trial and deposition testimony went to the issue of credibility and that the trial testimony should not have been stricken. The court of appeals reversed the trial court's grant of a directed verdict on the informed consent claim and remanded the case for a new trial.
Issue
What is the appropriate standard to be employed when assessing the issue of causation in a medical malpractice informed consent case?
Finding
Causation in informed consent cases is better resolved on an objective basis. The standard to be applied in informed consent cases is whether a reasonable person in the patient's position would have consented to the procedure or treatment in question if adequately informed of all significant perils.
Reason
In Tennessee, the plaintiff in an informed consent medical malpractice case has the burden of proving: (1) what a reasonable medical practitioner in the same or similar community would have disclosed to the patient about the risk posed by the proposed procedure or treatment; and (2) that the defendant departed from the norm.
The issue with which the court was confronted was whether an objective, subjective, or a hybrid subjective/objective test should be employed when assessing causation in informed consent cases. The majority of jurisdictions in Tennessee having addressed this issue follow an objective standard.
Subjective Standard: The subjective standard relies solely on the patient's testimony. Patients must testify and prove that they would not have consented to the procedure(s) had they been advised of the particular risk in question. Proponents of the subjective standard argue that a patient should have the right to make medical decisions regarding his or her care regardless of whether the determination is rational or reasonable. The subjective standard, however, potentially places the physician in jeopardy of the patient's hindsight and bitterness. The subjective standard is premised on the credibility of a patient's testimony.
Objective Standard: When applying the objective standard, the finder of fact may also take into account the characteristics of the plaintiff, including the plaintiff's idiosyncrasies, fears, age, medical condition, and religious beliefs. Accordingly, the objective standard affords the ease of applying a uniform standard and yet maintains the flexibility of allowing the finder of fact to make appropriate adjustments to accommodate the individual characteristics and idiosyncrasies of an individual patient. The standard to be applied in informed consent cases is whether a reasonable person in the patient's position would have consented to the procedure or treatment in question if adequately informed of all significant perils.
Under the objective analysis, the plaintiff's testimony is only one factor when determining the issue of informed consent. The issue is not whether Ashe would herself have chosen a different course of treatment. The issue is whether a reasonable patient in Ashe's position would have chosen a different course of treatment. The jury, therefore, should have been allowed to decide whether a reasonable person in Ashe's position would have consented to the radiation therapy had the risk of paralysis been disclosed.
Would the outcome of this case have been different if a subjective standard had been applied? Discuss your answer.
Explanation
Verified
Verified
Had subjective standard been applied in ...
Legal Aspects Of Health Care Administration 11th Edition by George Pozgar
Why don’t you like this exercise?
Other Minimum 8 character and maximum 255 character
Character 255
