In a narrow holding, the US Court of Appeals for the Tenth Circuit held that a patient has a valid informed consent claim against a physician if the physician untruthfully answers questions from the patient regarding facts about his or her credentials that can be verified through factual information.
Marcy Willis relied on the claim of Dr. D. Scott Bender, who assured her that he could perform the removal of her gallbladder laparoscopically despite recommendations by her physician that abdominal surgeries be performed on her through an open procedure. Willis had questioned Bender on his success with performing the laparascopic procedure, and Bender answered that he had never been sued, and that he had consulted with her physician, who agreed to the procedure. Both answers turned out to be false, and Willis sued Bender after suffering complications resulting from the procedure.
The court ruled that under Wyoming's informed consent laws, a physician does not have an "affirmative duty to voluntarily disclose physician-specific information or to obtain the approval of a patient's regular physician prior to obtaining consent;" however it "would allow an informed consent claim where a physician lies to a patient as to physician-specific information in direct response to a patient's questions concerning the same in the course of obtaining the patient's judgment as to the quality of his performance or abilities."
This article serves as a reminder to MSPs that while you can't control what a physicians say to patients, it is important to make sure that they have an understanding of informed consent policies.