The Oklahoma Supreme Court recently decided two issues related to informed consent under Oklahoma medical malpractice law in the case of Allen v. Harrison, 2016 OK 44, 374 P.3d 812. Informed consent is a basic principle of medical treatment that physicians must honor unless the patient is incapable of consenting to treatment and requires that physicians inform a patient of medically reasonable treatment options and associated risks.
The facts of the case are striking, as the patient who sought treatment swallowed a nail and then reported to an emergency room. The ER physician examined the patient and took an X-ray that confirmed the presence of the nail in the patient’s stomach. The physician then discharged the patient, prescribing only that the patient consume a “high fiber diet to let the nail pass,” return to the hospital if there were any problems, and follow up with the patient’s normal doctor in three (3) days. The next day, after severe vomiting, the patient reported to a different hospital’s ER, where the patient underwent emergency surgery to remove the nail and was treated for a perforated and infected bowel. The patient had two subsequent surgeries to address complications arising from the first.
The patient sued the first hospital and physician that treated the condition, based in part on the doctrine of informed consent. Specifically, the patient alleged the physician failed to disclose the potential risk in letting the nail pass naturally through the digestive system and failed to present any other alternatives to that course of action. The physician argued that the alternative treatments of endoscopic or surgical intervention were beyond his field of expertise, such that he was not required to advise the patient of those alternatives.
The Oklahoma Supreme Court disagreed with the physician and found that physicians do not adequately discharge their obligation to obtain informed consent by limiting the options presented to the patient to only those they recommend or that are within their scope of practice. Further, the Court found that the duty to disclose medically reasonable alternatives extends to invasive as well as noninvasive procedures. As applied to that case, the Court found that the physician should have explained the associated risks and alternatives to letting the nail pass through the digestive system along with the physician’s reasons for the recommended course of treatment.
As such, Oklahoma law is now clear that the doctrine of informed consent applies equally to invasive and noninvasive medical treatments and that physicians must disclose medically reasonable alternatives to the recommended treatment, regardless of whether those alternatives are within the physician’s field of expertise. As the Court stated, “a physician’s duty of disclosure must be measured by his patient’s need to know enough information to enable the patient to make an intelligent choice. . . . The ultimate decision of what treatment a patient receives rest with the patient, not the physician.”
If you have questions about the scope of a physician’s obligation to obtain informed consent prior to a medical procedure, or for more information about our Professional Malpractice practice, please contact us.