Does Goal of `Perfect Vision' Justify Cataract Surgery?

CASE ON POINT: Kenny v. Wepman, RI Supreme Court 99-556 A.2d - RI (2000)

ISSUE: Is a physician liable if he fails to obtain informed consent from his patient for cataract surgery? That was the issue with which the courts were confronted in this unusual Rhode Island case. An ophthalmologist argued that a patient's desire to have "perfect vision" justified the performance of cataract surgery. Did it?

CASE FACTS: Irene Kenny filed suit against Dr. Barry Wepman, an ophthalmologist, for medical malpractice on February 3, 1997. The complaint alleged that the physician was negligent in performing cataract surgery on her, and he had failed to obtain her informed consent for the operation. As part of her negligence complaint against the defendant, the plaintiff asserted that the defendant was negligent in recommending the surgery. After a trial before a jury, a verdict was returned in favor of the defendant physician on all counts. Thereafter, the plaintiff filed a motion for a new trial. In a written decision filed on July 16, 1999, the trial justice denied the plaintiff's motion on the count alleging negligent performance of surgery. However, the trial judge granted a new trial for the plaintiff on the allegations of negligent recommendation of surgery and lack of informed consent. The defendant physician appealed.

COURT'S OPINION: In ruling on a motion for a new trial, a trial justice acts as a "thirteenth juror" in that he (or she) makes an independent appraisal of the evidence in light of his (or her) charge to the jury. In so doing, the trial justice can weigh the evidence, assess the witnesses' credibility, reject some evidence, and draw reasonable inferences from the testimony and evidence in the record. The court noted that on appeal the defendant argued that the trial justice was wrong in granting a new trial on the plaintiffs assertion that the defendant negligently recommended surgery. He contended that the trial justice overlooked testimony of his expert witness, who said that cataract surgery was warranted. The court disagreed! The trial justice conducted a thorough analysis of the evidence in a thirteen-page written decision. After reviewing the medical records of the defendant physician, the court found a conspicuous dearth of documentation of the plaintiffs vision complaints in those records.

LEGAL COMMENTARY: The trial justice found that the plaintiff had no preoperative complaints concerning the vision in her left eye. In light of this evidence, the trial justice concluded that the defendant's assertion that the plaintiff complained of vision problems was "unworthy of belief." Finally, she accepted the undisputed testimony of the plaintiffs expert witnesses that the mere presence of a cataract does not justify surgery. Therefore, the trial justice was neither clearly wrong, nor did she overlook or misconceive material evidence in granting a new trial on the claim of negligent recommendation of surgery. The defendant next contended that the trial justice was clearly wrong in granting a new trial on the plaintiffs allegation that the defendant failed to obtain the plaintiff's informed consent to the surgery. In reaching this conclusion, the trial justice reasoned that the plaintiff could not have given informed consent because the defendant never advised her that surgery is appropriate only when a cataract causes visual problems or interferes with a patient's lifestyle. The defendant did not take issue with the rationale; rather, he argued that the plaintiffs alleged desire to have "perfect vision" in her left eye "justified the surgery." Under the doctrine of informed consent, a physician must communicate to a patient "the material risks associated with and the viable alternatives to a recommended surgical procedure." To recover under this doctrine, a plaintiff must also prove that if he or she had been informed of the material risks and alternative methods of treatment, he or she would not have consented to the procedure. Wilkinson v. Vesey, 110 R.I. 606, 628-29, 295 A. 2d 676,690 (1972). Here, the trial justice was not clearly wrong in concluding that the defendant failed to apprise the plaintiff of viable alternatives. The defendant did not advise the plaintiff that cataract surgery would be justified only if she was experiencing vision loss or detrimental effects on her lifestyle. Additionally, it was not error to find that the plaintiff would have chosen to forego surgery had she been so advised. The trial justice was not clearly wrong in granting a new trial on the issue of informed consent. Some physicians are quick to obtain a patient's consent to surgery whether it is truly informed or not. Unless consent is "informed consent" it is not valid consent.