A request for informed consent can be pursued even in the absence of negligence, rules the court

This month we look at the issue of informed consent, something that normally brings to mind surgical consent forms. In this case, we learn that it means much more than that.

The patient in the case, Ms. D, was involved in a single car rollover accident. Paramedics extracted her from the vehicle, placed her on a spine board and in a cervical collar, and transported her to hospital. She reported pain in her neck, back, left shoulder, and tingling in her left arm. The patient suffered from pre-existing high blood pressure, pneumonia, kidney stones and diabetes.

Dr. H, the ER attending physician, performed a physical examination and ordered lab tests, an electrocardiogram, and a computed tomography (CT) scan of Ms. D. The radiologist who interpreted the CT scans noted fractures in the patient’s cervical spine at level C3.

On the recommendation of the radiologist, Dr. H contacted a neurosurgeon who regularly consulted other physicians in the hospital by telephone. After reviewing the scans, the neurosurgeon told Dr. H that the fractures appeared stable and did not require surgery. Neither the radiologist nor the neurosurgeon identified a transverse foramen fracture, which would increase the risk of vertebral artery injury. The neurosurgeon recommended that Ms D be placed in a cervical collar for 8 weeks, with a follow-up CT scan to check healing and alignment.

Dr. H first informed Mrs. D and her family that she had suffered a broken neck and would likely be transferred to the trauma unit. However, after consultation with the neurosurgeon, Dr. H informed the patient that she did not need hospitalization or surgery and could be discharged with a hard cervical collar, with follow-up on an outpatient basis. The doctor asked the family if it was okay to take Mrs. D home, and they said yes. Dr. H prescribed painkillers, anti-nausea medication, and a muscle relaxer, and sent Ms. D home without further treatment or testing.

The next day, Mrs. D goes to her attending physician for a follow-up. In the office, her vital signs were unstable and she complained of severe neck pain aggravated by coughing. The doctor called an ambulance, and while they waited for her to arrive, Mrs. D suffered a stroke. The stroke was later determined to have been caused by a vertebral artery dissection suffered when his neck was fractured in the accident. She was hospitalized for 3 weeks and then transferred to an assisted living facility where she currently resides.

The trial

Ms. D retained an attorney and sued Dr. H and the hospital, alleging medical negligence and failure to obtain informed consent. She alleged that Dr. H breached the standard of care by failing to admit or refer her for observation and treatment, or by failing to order additional imaging, such as a computed tomography angiogram (CTA) to verify the vertebral artery dissection before discharge.

The defense filed a motion asking the court to dismiss the request for informed consent, which the court granted.

At trial, the jury heard expert evidence on whether Dr. H breached an emergency physician’s standard of care. Dr. H testified that he considered and rejected a diagnosis of vertebral artery dissection and that his care for Ms. D met the standard of care. A defense expert testified that Dr H “absolutely met the standard of care” by performing a thorough examination, identifying Ms D’s fractured neck and consulting with the neurosurgeon before making a decision. The expert also testified that the standard of care in the state does not require a CTA scan for every C3 fracture. The Plaintiff’s expert testified that a differential diagnosis of vertebral artery dissection requires a CTA scan and that it was not safe for Ms. D to be sent home.

After deliberation, the jury found that Dr. H was not negligent.

About Jessica J. Bass

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