Tulsa Attorney BlogOklahoma Informed Consent Requires Disclosure When Assistants Perform Surgery

Tulsa Medical Negligence Decision Reversed

Tulsa medical negligence attorneyIn a nutshell, informed consent to medical procedures seems a simple matter. Patients have a right to know about risks and benefits of medical treatments before they agree to a procedure. Doctors have an obligation to tell them.

As a practical matter, informed consent is not always so simple. Informed consent requirements are embodied both in medical ethics and in personal injury law. Information required to make a knowledgeable decision can involve risks and benefits as well as who will be involved in a procedure.

Oklahoma personal injury law has recognized since 1979 that physicians are obligated to disclose enough information to let patients make informed choices about medical procedures. When a doctor does not get informed consent, an injured patient might have grounds to sue for medical negligence.

Yet, in a landmark 1979 informed consent case, the Oklahoma’s Supreme Court found “no bright line” to define what information a doctor should tell a patient. When non-disclosure of a risk is open to debate, the court said, future courts may sort out the facts. Scott v. Bradford 1979 OK 165

An Oklahoma Supreme Court decision handed down in June, 2017 reiterated the state’s informed consent doctrine where non-physicians are involved in surgical procedures. “[N]o physician has carte blanche to delegate any or all tasks to a non-doctor,” the court stated. Hurley v Kirk, 2017 OK 55

Was Surgery Performed by a Surgeon?

The case involved a woman whose gynecologist recommended a laparoscopic hysterectomy – a procedure sometimes called band-aid surgery or minimally invasive surgery.

A complication occurred. The procedure at a Tulsa medical facility stretched out for five hours while a urologist was called in to repair a damaged duct between the patient’s kidney and bladder. Further surgeries followed to repair her damaged uterer. Meanwhile, she suffered pain and limited mobility.

To perform the surgery, the gynecologist had enlisted the services of a non-physician assistant. Working as an independent contractor, the certified EMT and Certified First Assistant had assisted the same physician in 40 or 50 other procedures.

Standing on opposite sides of the table, the gynecologist and her assistant had each applied similar procedures on opposite sides of the patient. Despite conflicting evidence about who caused the injury, the damage occurred on the side where the non-physician assistant had worked.

Prior to the surgery the patient had signed an informed consent document. The form authorized whomever the physician may designate to assistant in the operation. However, a section designating persons authorized to conduct “significant surgical tasks” was left blank.

Lower courts had ruled against the patient. Her own experts had found no negligence in performance of the surgery, the appeals court noted. It stated the damage she suffered was a known risk in that type of surgery.

Yet the woman said she would have not agreed to the procedure had she known the extent to which an assistant would be involved. And, she argued, the assistant’s role in cutting and cauterizing near her internal organs exceeded the scope of his allowed involvement. In doing so, both the doctor and the assistant failed to meet the required the standard of care, she argued.

3 Elements of an Oklahoma Informed Consent Claim

Citing the same landmark 1979 case the higher court later cited to overturn its decision, the appeals court said the patient had failed to meet two of three requirements for an Oklahoma informed consent medical negligence claim.

According to the 1979 Scott decision, informed consent claims for medical negligence in Oklahoma require that

  1. A doctor failed to inform the patient of a material risk before securing consent for a procedure,
  2. The patient would not have agreed to the procedure knowing of the risk, and
  3. Adverse consequences that were not made known occurred, and the patient was injured as a result.

The appeals court had affirmed the district court’s summary judgment based on matters of law, not on factual findings which it said were not in dispute. As a matter of law, breach of a duty does not prove negligence, the appeals court said.

By the appeals court’s view, the material risk in question involved a particular injury to the patient’s organ. She did not dispute that she had been informed of that risk, the appeals court noted.

To the contrary, the higher court found:

“The law is clear and well developed concerning a physician’s duty of care and the liability of one whose care exercised is substandard. … The scope of the duty to inform is broad enough to include a physician’s duty to inform the patient ‘who’ will be performing significant portions of the procedure or surgical tasks.”

A trial court can decide whether a non-physician’s role in the procedure increased her risk of injury, exactly how much the assistant was involved, whether the assistant was qualified to perform those procedures and the standard of care to which she was entitled, the Oklahoma Supreme Court found.

The Oklahoma Supreme Court did not find that either the doctor or the assistant caused the injury. The decision instead concluded the patient was entitled to have those factual questions settled at trial. The decision reversed the lower courts’ summary dismissal of her Tulsa medical negligence lawsuit before it went to trial.

Medical negligence cases in Oklahoma are notoriously difficult to prove. Cases of negligence and malpractice can hinge on matters of law or on disputed facts, either of which can be subject to broad interpretation.

Free Consultation: Tulsa Medical Negligence Attorney

If you were injured either as a result of a medical procedure when you were not informed of the risks, or you were not informed of alternatives that could have avoided the risks, you could be entitled to compensation.

For a free consultation with a Tulsa medical negligence attorney, call the Wirth Law Office at 918-879-1681 or request your free consultation using the form at the top of this page.


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