Lack of Informed Consent Leads to Medical Malpractice


Informed Consent  

Surgeon Performing Operation

Informed Refusal Ignored

I was recently involved in a medical malpractice case that went against the physician. Remember, most malpractice cases are brought against a physician is in reality bad outcomes, as no one in the medical profession attempts to do the wrong thing to anyone. In this particular case, however, lack of communication (Informed Consent) and common sense led to a favorable plaintiff’s verdict.

Informed Refusal Communicated

A 67 year old male underwent an elective bowel resection for a malignancy. Preoperatively, the patient explained to the surgeon, his nurse, and the preop staff that he did NOT want a nasogastric tube (NGT) placed due to his underlying fear. In fact, the patients’ brother died as a result of a misplaced NGT. Furthermore, it was written down and documented by several individuals.

Informed Refusal Ignored

The surgery went well and postoperatively he developed a distended abdomen, but was still on liquids and passing flatus. An NGT was ordered by the surgeon and refused by the patient on 3 separate occasions. On the afternoon of the 4th postoperative day, the surgeon took it upon himself to place the NGT, however the patient vomited in his presence, and the surgeon did not verify the placement. In fact, the surgeon placed the tube, left the floor at the same time a rapid response was called by the nurse. After transfer to the ICU and intubation, the stat chest X-ray revealed the tip of the NGT in the right main stem bronchus, which was rapidly replaced.

Informed Consent Paramount

Informed Consent Paramount

Underlying Fear Realized

Unfortunately, after many other medical problems related to the inadvertent placement of the NGT into the lung, the patient never fully recovered and died from post surgical complication.

Informed Consent Paramount

Communication needs to be of paramount importance when dealing with patients and their families.  However, there is no way for any of us dealing with complex medical issues to avoid a legal action taken against us.

Why would a surgeon do a procedure on his patient if/when it was clear he or she did not provide informed consent?

Defense Response

In this case, the defense claimed that the placement the NG tube was an “emergency” procedure and that the surgeon had the duty to treat his patient and not worry about the consent. Moreover, the surgeon testified that the patient gave verbal consent immediately prior to placement, although the nurse present could not corroborate his testimony.

Why is the placement of an NGT an emergency if a patient has not vomited, previously not received anti-nausea medication, tolerating a clear diet, and passing flatus?

Informed Consent Extended to Family

It is clear that in the case of an emergency, or if the patient cannot give consent, it is incumbent on the provider to attempt to contact the family or power of attorney. In this particular case, the family was very attentive and readily available but no attempt was made, nor were they notified until ICU transfer and intubation.

Physician’s Duty of Care

When a routine procedure is performed, physicians have a fiduciary Duty of Care to ensure the procedure was done correctly and be available if or when a patient demonstrates sign or symptoms of decompensating.

Finally, this particular case was preventable and avoidable.

And the jury agreed.

Written by: Colon & Rectal Surgery Abdominal Trauma Gallbladder Colorectal Cancer Medical Expert Witness No. 709


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