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Surgeon Extends Operative Procedures Beyond Scope of Consent
ISSUE: What liability is a healthcare provider subject to when repeated patient safety warnings are ignored?
A 32-year-old nulliparous woman had been experiencing abdominal pain, and her gynecologist initially suggested that she might be suffering from endometriosis. He recommended a course of drug treatment to determine if that would relieve her symptoms, but she was reluctant to take medication for a condition that had not yet been confirmed. The gynecologist then recommended a laparoscopic pelviscopy to determine if she had endometriosis and perhaps to biopsy or electrosurgically ablate any endometriosis that might be discovered.
The patient understood that the procedure would not involve any major surgery. She signed a consent form that authorized the gynecologist to perform an "operative pelviscopy and indicated procedures," which she understood to mean a laparoscopic pelviscopy to determine if endometriosis was present and possibly to ablate any endometriosis found. The gynecologist viewed the consent more broadly, believing that it authorized him to determine through the laparoscopic procedure whether any endometriosis was present and to conduct any further laparoscopic surgery that he deemed "reasonably necessary" to relieve the patient of abdominal pain. The patient raised a question at the time of signing the consent form as to its provisions regarding laboratory analysis of organs removed at surgery. The gynecologist assured her that she need not worry about that provision because no such procedures would be performed in this minor surgical operation. The consent form described the risks associated with surgery as including "respiratory problems, blood clots, brain and nerve damage, heart attack, cardiac arrest, and/or death."
During the course of pelviscopy, the gynecologist found extensive involvement by what he believed to be endometriosis of the left ovary and fallopian tube. Concerned that the abnormal tissue might be the source of the patient's abdominal pain, he proceeded to perform a salpingo-oophorectomy. In the process, the electrocautery injured the ureter, requiring four subsequent surgeries and extensive hospitalization. The patient sued, alleging negligent surgical care. She also claimed lack of informed consent, under a negligence theory and a battery claim, in that she never consented to the removal of her left ovary and tube; nor was she ever apprised by the gynecologist of the possibility that those organs would be removed. The gynecologist argued that the surgical organ removal was a reasonable extension of the consent given.
A 32-year-old nulliparous woman had been experiencing abdominal pain, and her gynecologist initially suggested that she might be suffering from endometriosis. He recommended a course of drug treatment to determine if that would relieve her symptoms, but she was reluctant to take medication for a condition that had not yet been confirmed. The gynecologist then recommended a laparoscopic pelviscopy to determine if she had endometriosis and perhaps to biopsy or electrosurgically ablate any endometriosis that might be discovered.
The patient understood that the procedure would not involve any major surgery. She signed a consent form that authorized the gynecologist to perform an "operative pelviscopy and indicated procedures," which she understood to mean a laparoscopic pelviscopy to determine if endometriosis was present and possibly to ablate any endometriosis found. The gynecologist viewed the consent more broadly, believing that it authorized him to determine through the laparoscopic procedure whether any endometriosis was present and to conduct any further laparoscopic surgery that he deemed "reasonably necessary" to relieve the patient of abdominal pain. The patient raised a question at the time of signing the consent form as to its provisions regarding laboratory analysis of organs removed at surgery. The gynecologist assured her that she need not worry about that provision because no such procedures would be performed in this minor surgical operation. The consent form described the risks associated with surgery as including "respiratory problems, blood clots, brain and nerve damage, heart attack, cardiac arrest, and/or death."
During the course of pelviscopy, the gynecologist found extensive involvement by what he believed to be endometriosis of the left ovary and fallopian tube. Concerned that the abnormal tissue might be the source of the patient's abdominal pain, he proceeded to perform a salpingo-oophorectomy. In the process, the electrocautery injured the ureter, requiring four subsequent surgeries and extensive hospitalization. The patient sued, alleging negligent surgical care. She also claimed lack of informed consent, under a negligence theory and a battery claim, in that she never consented to the removal of her left ovary and tube; nor was she ever apprised by the gynecologist of the possibility that those organs would be removed. The gynecologist argued that the surgical organ removal was a reasonable extension of the consent given.
From your analysis of the case, assess whether the following statesments are true or false:
| * | A surgeon may extend the scope of an operative procedure only to the extent discussed with the patient, absent a life-threatening emergency. | True or False |
| * | A surgeon need not discuss with the patient alternative procedures that might be required during surgery. | True or False |
| * | If, during surgery in which a patient is under general anesthesia, a surgeon discovers a condition that constitutes an immediately life-threatening situation, it is assumed that consent is given to correct the problem. | True or False |
Expand to check answers
GENERAL PRINCIPLE: Unless an emergency life-threatening finding is discovered during surgery, procedures must be limited to those contemplated and discussed with the patient beforehand.
APPLIED PRINCIPLE: Although most courts have adopted the modern approach to true informed consent cases, many courts and legislatures have not overruled earlier cases that recognize claims of battery for procedures performed entirely without a patient's consent. Medical battery is generally limited to a procedure that is completely unauthorized, and substantially different from the procedure discussed.
The removal of the patient's ovary and tube qualified as a 'substantially different' procedure that was 'completely unauthorized.' The procedure that was discussed with the patient beforehand was to be a minor procedure in which the gynecologist specifically stated that no organs would be removed. The patient believed that the procedure was to be diagnostic and that it would be the basis for medical treatment, not surgical treatment for this non-emergency condition that resulted in the removal of a fallopian tube and ovary.
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APPLIED PRINCIPLE: Although most courts have adopted the modern approach to true informed consent cases, many courts and legislatures have not overruled earlier cases that recognize claims of battery for procedures performed entirely without a patient's consent. Medical battery is generally limited to a procedure that is completely unauthorized, and substantially different from the procedure discussed.
The removal of the patient's ovary and tube qualified as a 'substantially different' procedure that was 'completely unauthorized.' The procedure that was discussed with the patient beforehand was to be a minor procedure in which the gynecologist specifically stated that no organs would be removed. The patient believed that the procedure was to be diagnostic and that it would be the basis for medical treatment, not surgical treatment for this non-emergency condition that resulted in the removal of a fallopian tube and ovary.
| * | A surgeon may extend the scope of an operative procedure only to the extent discussed with the patient, absent a life-threatening emergency. | True |
| * | A surgeon need not discuss with the patient alternative procedures that might be required during surgery. | False |
| * | If, during surgery in which a patient is under general anesthesia, a surgeon discovers a condition that constitutes an immediately life-threatening situation, it is assumed that consent is given to correct the problem. | True |