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Did surgeon fail to obtain patient's informed consent?

CASE ON POINT: Walls v. Shreck, 658 N.W.2d 686-NE (2003)

ISSUE: One of the most basic and fundamental principals in medical law is that a physician must obtain a patient's informed consent before performing any procedure on the patient. In this unusual Nebraska case, involving what was supposed to be corrective surgery on a patient's left eye, a surgeon, after encountering "excessive scar tissue" on the left eye, proceeded to operate on the patient's right eye. He did so despite the fact that the patient had clearly and unequivocally stated to the physician that he did not want any procedure done on his right eye. Would the fact that the consent form the patient signed had a provision allowing the physician to "change his mind" make any difference?

CASE FACTS: As a child, Jason Walls had a condition that caused his left eye to be out of alignment with his right eye. He had surgery on his left eye to correct condition. However, the condition reoccurred several years later. In March 1999, the patient sought medical treatment from Dr. James Shreck, a physician and surgeon licensed under the laws of the State of Nebraska. The patient met with Dr. Shreck and discussed the possibility of a procedure called strabismus surgery on the patient's left eye to correct the misalignment. The surgery involved a procedure on the affected eye. The object of the surgery was to bring both eyes into alignment. The patient and the physician agreed that the best approach to treating the condition was to attempt surgery on the patient's left eye. The physician maintained that he told the patient that although the goal was to operate on the patient's left eye, he might have to operate on the right eye instead. Conversely, the patient maintained that he specifically informed the physician that he did not want any surgery performed on his right eye. Dr. Shreck admitted that he did not discuss operating on both eyes at the same time. Prior to surgery, the patient signed an authorization and consent form that reads in pertinent part: "I hereby authorize Dr. Shreck ... to perform the following procedure and/or alternative procedure necessary to treat my condition: ... Recesion [sic] and Resection of the Left Eye [.]... and I authorize my physician and his assistants to do what they feel is needed and necessary." During the surgery, Dr. Shreck encountered excessive scar tissue on the muscles of the left eye. He elected to adjust the muscles of the right eye instead. When the patient awoke from anesthesia, he expressed surprise and anger at the fact that both of his eyes were bandaged. The next day, the patient went to Dr. Shreck's office for a follow-up visit and adjustment of his sutures. The patient questioned Dr. Shreck as to the reason he operated on the right eye. Dr. Shreck responded that the had reserved to the right to "change his mind" during surgery. The patient brought suit against Dr. Shreck. He maintained that he never would have entered the hospital knowing there was a possibility of surgery on his right eye became he had so many problems with his left eye after childhood surgery. He stated that prior to the surgery he had no problems with his right eye. He also alleged that following the surgery he has had daily problems with his right eye. At trial, Dr. Thomas Roussel provided expert medical testimony on behalf of the patient. Dr. Roussel was the only expert witness to testify regarding the applicable standard of care for obtaining informed consent prior to performing strabismus surgery. Dr. Shreck's motion for a directed verdict and dismissal was granted. The patient appealed.

COURT'S OPINION: The Supreme Court of Nebraska reversed the judgment of the lower court and remanded the case back to the lower court for trial. The court held, inter alia, that Dr. Shreck obtained the patient's informed consent to perform surgery to the left eye. The issue of whether the physician obtained informed consent to perform surgery on the right eye was problematic.

LEGAL COMMENTARY: The court rejected Dr. Shreck's contention that he had "reserved the right to change his mind." The court noted that shortly after the operation Dr. Shreck told the patient's father that be (Dr. Shreck) should have "done a better job of informing ... the patient as to the possibility of surgery on the right eye." This evidence created an inference that Dr. Shreck believed that he did not obtain informed consent to operate on the right eye. There was evidence that the patient specifically told the surgeon that he did not want surgery on his right eye.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Providence, R.I. firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievement as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, and Who's Who in America.
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Title Annotation:Medical Law Case of the Month
Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Apr 1, 2003
Words:898
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