Wednesday, March 17, 2010

Is It Malpractice To Lie?

I came across this interesting malpractice case via the HealthLaw Twitter feed which I've been following for a while now. The case is Willis v Bender, a 10th Circuit Court of Appeals case out of Wisconsin.

In this case a surgeon was sued by his patient following complications from a laparoscopic cholecystectomy (gall bladder removal). Before the procedure he explained the risks of the surgery to her, and she also asked him questions about his experience and success rate with the procedure. She asked additional questions about whether he had ever been sued for malpractice or had any action taken against his medical license. He answered no to both questions and added that he had an almost perfect success rate with the surgery. Well, bad things happened. The patient suffered a perforated intestine and an infection. She later found out that the doctor had lost a patient during this same procedure, and that he was disciplined for the board as a result of that case.

At trial the jury found in favor of the doctor because even the plaintiff's expert couldn't say that the complications were the direct result of improperly performed surgery. Even properly done surgery of this type carried the risk of perforation, bleeding and infection. The plaintiff also alleged that the doctor failed to give her informed consent because he gave false information about his personal background. The trial court wouldn't allow the informed consent issue to be raised because in Wisconsin the law only required that physicians tell patients the material risks of proposed treatment. There was no affirmative duty to disclose professional background information even when asked.

So the plaintiff appealed.

The 10th US Court of Appeals reviewed various similar informed consent cases and found that courts took different views on whether or not lying to a patient about a physician's background could be considered a breach of informed consent. Some courts held that doctors could be found liable only if they lied regarding the risks of the proposed treatment. In this case, the appellate court decided that the patient should have had a chance to make the argument, and sent the case back for retrial on that issue.

We'll see what ends up happening on retrial, but I thought this was an interesting emerging area of law. What if the issue wasn't technical incompetence? How much "personal background" should a doctor have to tell a patient before treatment can begin? Medical school grades? Failure to pay income tax? Should doctors be required to disclose to patients the fact that they've been treated for mental illness themselves?


Penelope said...

Absolutely malpractice in my opinion.

I wouldn't even go to a new hair dresser without asking how many times they've cut or coloured hair.

Patients have a right to informed consent. I think that reasonable people understand that there can be complications. Why lie?

HappyOrganist said...

How awkward would it be for a doctor to have to tell a patient that he'd "lost" a patient before on the same exact procedure?

But yeah, that should probably be required (I don't know about laws - but it seems a reasonable question to get an answer to if the patient feels to ask it). "Do you have a good success rate with this operation?"

At the same time - I can see ruling the way they did if infections sometimes occur with proper execution of said surgery. Infections happen. That's why we generally try not to cut ourselves open (i.e. surgery) when it's possible to avoid it. Is this not correct?

moviedoc said...

This lie had nothing to do with negligence, moral turpitude, maybe, but not malpractice. This would be a legitimate complaint for the licensing board. Patients have a right to ask any question they want to ask. Doctors have a right to decline to answer, then the patient can decide how to proceed. We docs have privacy rights, too.
It was wrong for the doc to lie, but it was not malpractice.

Dr X said...

Funny, I don't make it habit of reading appellate court decisions, but it so happens that I read this decision yesterday.

It seems to me that the court conflated "no affirmative obligation to disclose" with freedom to lie. Thus, if it isn't covered under duty to disclose, the practitioner is free to tell a whopper, even if it affects the patient's decision to undergo surgery that leads to an adverse outcome.

The way around this? New legislation requiring physicians to make honest disclosures if they choose to disclose information about lawsuits, professional discipline and experience.

moviedoc said...

Please, no more regulation of medicine. The last thing we need is more legislation. BTW: Section 2 of the code of ethics addresses this directly: "A physician shall... be honest in all professional interactions..."

Furthermore, we all inform our patients to some degree about the risks and benefits of procedures, meds, etc. Never have I heard that one's own track record or disciplinary history should be included. And in this case we don't for what the doc was disciplined or what led to the death. It may or may not have been relevant to Willis. The real issue here is whether he failed to warn her of the possibility of the perforation. The only thing going for the plaintiff here is that she likely claims that she would have chosen a different surgeon had she known the truth. Easy to say in retrospect when plaintiff and attorneys stand to gain $$. And apparently the same complication could as easily have occurred with a different surgeon anyway.

ClinkShrink said...

So what about someone seeing a psychiatrist for marital therapy? Should the doc be obligated to disclose that he or she has been divorced?

Anonymous said...

I disagree with moviedoc. It most certainly was relevant to the patient. If a patient does not give informed consent to a procedure and you do the procedure anyway it's called assault. The patient did not give informed consent. She agreed based on deceitful information. That's not informed consent. He could have said, "I don't have to answer those questions, it's not your business." That's certainly his right. It's not his right to lie to the patient so they'll sign the consent form so he can make money.

I hope his legal headache is quite costly for him. He deserves it.

Anonymous said...

Correction - meant to say "battery" in my previous post instead of assault.

moviedoc said...

Clink: Absolutely not. Psychotherapist should only disclose if he or she wants to.

Anon: Who pays for it? Not the surgeon, the malpractice carrier does, which means you and I do, in increased fees to cover increased premiums, or because their are less docs to do the work.

Battery is a criminal offense. This is a civil case.

ClinkShrink said...

Moviedoc: In some jurisdictions battery can be either a civil or a criminal issue. Similarly, in Maryland there is civil negligence but there is also the crime of negligence.

Marital stress might be a material issue that would influence a patient's decision to seek treatment with that psychiatrist. Under this case, a court might theoretically say that must be disclosed.

moviedoc said...

Clink: I didn't know that about battery. Apparently not an issue in this case. Wonder why.

As for the marital stress, how did it get to court? Let's say the couple asks the psychiatrist if she's been divorced. I say she must either say yes, or say I won't tell you. Her choice. It would not be OK for her to lie. At that point the couple can find someone else. No damages. No court. When you say "must be disclosed," do you mean the court would hold that the psychiatrist should volunteer the information? First you would need an expert to testify to that. Then there would have to be damages, and proximate cause. Seems like a real stretch.

How far would you go with this? Treating a rape victim must you tell them you were raped by your brother when you were 10? What about prescribing meds. Do I have to tell my patients I've never taken psychotropics, or which ones I have taken? Would that be "material?"

I forget where this issue went with AIDS. Does a doc or dentist who is HIV positive have to inform patients?

How about a doctors' bill of rights? Privacy would be on the list.

Anonymous said...

As a nurse and a patient (of medical and psychiatric docs) I think that if a doc lies when obtaining informed consent, that is clearly NOT ok - not sure if that is malpractice and/or a licensure issue. I think asking about complications rates and experience with a particular procedure are absolutely appropriate questions, for any MD. When you read articles for consumers about how to get good care, these are questions you are encouraged to ask!!! If the doc has had little experience and/or complications, doc can have prepared a statement explaining why he feels adequately prepared in this case, what is different about this case in terms of risk of complications(such as 'other pt. had another serious illness that increased risk, etc.)
Asking about action against licensure and malpractice history - in Mass, this is public information if you look it up on state web site. Even if it is not public info, it is still a relevant question. I'd MUCH rather have a doc explain briefly (without violating his/her own or other patients' privacy) what went wrong and how it has been corrected, than to have an MD who lies.
I have the same expectations of psych MDs, by the way. the issues may be harder to define, but certainly how much experience in treating a particular area, licensure, malpractice, etc. are legitimate questions. I don't have to know the doc's personal experiences of medical/MH/life issues to determine skills, but a doc should be able to give a carefully reasoned explanation of own skills/limitations. With psychiatry, I always thought it was incumbent upon the doc to have self knowledge sufficient to identify and appropriately refer clients who he/she cannot treat - ie, if you are in the midst of your own messy divorce, don't take on new clients with marital issues, etc. Yes, life is not always this neat and tidy, but isn't that why psych MDs have their own clinical supervision??
My bottom line is that if any deceit is employed in gaining consent, that is NOT informed consent.

Penelope said...

While I agree that physicians are entitled to a certain level of privacy for personal matters, I would argue that the information requested was professional in nature.

As far as I am aware, disciplinary measures are public information, if one wants to search for it.

I don't think that asking for a surgeon's history of procedures and complications is at all analogous to the example of martial therapy.

Certainly it is within reason to decline to answer questions about your professional history; but also well within a patient's right to ask - and to choose someone more forthcoming, if they prefer.

Battle Weary said...

Off topic, but important...
Regarding Moviedoc's comment, "Treating a rape victim must you tell them you were raped by your brother when you were 10?"...This is probably a bit too much information. However, telling a rape victim that you (the treating therapist or Psychiatrist) are a survivor of rape is often very helpful! Rape victims often think that no one understands, and that they can not survive. Having someone right in front of them who has experienced the same thing and survived it, is therapeutic. It should never be confabulated though, either true, or not said.

Sunny CA said...

I think that success rates of surgeries for each doctor ought to be recorded and published on the internet and all malpractice suits and judgments against doctors ought to be there, too. This is not at ALL the same as a patient wanting to know personal information about the life of their shrink. Face it. Some surgeons botch surgeries over and over and others are great. I consider the cited case malpractice.

moviedoc said...

Agree with Battle Weary, but another nuance: Having trained in family systems I am much more inclined to self disclosure than an analyst, but one still must consider just what might be too much info, or what will advance the treatment.

Anonymous said...

I think it is absolutely appropriate for a patient to ask a surgeon questions like:
1) HOw many surgeries of this type he has performed
2) What his success rate is and how that compares to the average

If the surgeon LIES about his background, f*ck yea that is grounds for malpractice because he is no longer giving her informed consent.

The professional ability of the surgeon to perform this surgery (indicated by # of surgeries and success rate) is by no means personal information. Those questions have nothing in common with questions like, med school grades or income tax.

Anonymous said...

Moviedoc writes, "Anon: Who pays for it? Not the surgeon, the malpractice carrier does, which means you and I do, in increased fees to cover increased premiums, or because their are less docs to do the work."

You're right about them passing on the cost. Still, sometimes legal action is the right thing to do. I don't have any problem with the patient in the story taking this surgeon to court based on what I've read. And, it doesn't sound as if the world would suffer a great loss if that physician suddenly stopped practicing medicine.

I have physicians in my family who I think the world of & I have a lot of regard for most physicians. I've also worked in the health care field for many years. I've had two patients over the years threaten to sue me simply because they didn't get their way and not because I had done anything wrong. So, I see both sides.

However, in the case mentioned I think the surgeon dug his own hole. It does sound like his attitude had a lot to do with why he landed in court.

Incidentally, even when I was one week out of school if a patient asked when I graduated I told them the truth. Early on I did see an occasional look of fear at learning I was a newbie, but none of them asked for someone else. However, if they had asked for someone else that would have been their right and I would have respected their wishes. It's their money, their body, and their decision.

moviedoc said...

But, anon, a successful suit doesn't remove a bad doc from practice. Only a licensure action can guarantee that. Suing someone out of a need to punish them may accomplish little. The real purpose of civil suits is to make the plaintiff whole. I suspect even "punitive" damages, if they're ever awarded in malpractice suits, would be covered by insurance.

I keep wondering, "What was this guy thinking?" to lie to a patient. Maybe he was lying to all his patients!?

Anonymous said...

I know the civil action doesn't remove the guy from practice. And perhaps it doesn't punish the physician by taking them to court, but it does at the very least take time away from their practice which does cost them some money.

In addition, if they lose the civil and/or criminal case it makes it easier for the patient to get the medical board to take action against the physician, rarely causing them to lose their license but maybe forcing them to take classes, pay a fine, they have to travel to the state capitol, the embarrassment of being dressed down by their peers, etc.

moviedoc said...

Anon, I assume you're right, but I wonder. I have also heard that plaintiffs should start with the licensure complaint which helps win the lawsuit. It probably depends. In this case the lie should be addressed by the board regardless of whether damage resulted.

Cindy said...

The questions that the patient asked were directly relevant to selecting this physician for the procedure. He answered NO when the true answer was Yes.
There was not a grey area here. There is a measurable difference for more experienced vs. less experienced surgeons.

Is it malpractice for a therapist to lie to a client? When a therapist lies to a client to avoid self-disclosure?
Q- Did I see you in the grocery the other day with a 12-pack of (beer, pop tarts, chicken thighs, incontinence pads, etc)?
T- (laughs) No, I never buy that much at once!
Why doesn't the therapist just say yes or no, which ever is true?

Lu said...

Cindy: because it's so much more fun to turn it back on the patient and ask them why they want to know?

Meg said...

I agree that it is malpractice.
I disagree about it being an issue of "personal background." Whether or not the doctor had previously lost patients from that procedure, and whether or not he had had action taken against him is professional background, not personal. "Personal" implies that it affects only the private life of the individual in question. Just because something could go wrong no matter how skilled the surgeon doesn't justify lying about the outcome of prior surgeries, especially given that the patient directly asked. It wasn't a lie of omission, it was a flat-out lie about something that the patient clearly considered important information to their decision about the surgery.
I'd agree that doctors aren't required to share personal background (although some certainly do, and it can be helpful) but I don't see how that would translate to allow for lies regarding professional background.

Anonymous said...

We don't ask lawyers about their family background, which may well be material to the case.(eg a lawyer who was raped or who commited rape may not be appropriate for a rape case)
We don't ask lawyers about their success rate.
My medical practice is profoundly affected by the threat of litigation.

Anonymous said...

I don't think physicians should have to answer any questions they don't want to answer, but they don't have the right to lie to patients to get them to sign the consent form. I don't see how that's a valid contract. That is not informed consent.

Regardless of how much you want to be the one selected to do the procedure, that's the patient's choice not yours. I think it's smart to look into a physician's background before selecting them to do surgery. I would want to know how much experience you have or if there had been malpractice issues. Patients are the ones paying and taking the risks. They get to decide how much risk they're willing to take -not the physician. If you refuse to answer the questions, which I do believe is your right, then it lets the patient decide what to do next - either get on the medical board website and see if anything has been reported, talk to more people, find another physician who doesn't mind answering the questions, etc.

I see why malpractice insurance is high. I think in many cases it's the attitude that goes along with the malpractice that leads to legal action being taken. I understand that that's not always the case, and sometimes it is simply an accident. However, I know in my family's situation had there been even a tiny morsel of remorse by the physician who treated my grandfather he wouldn't have had to travel to the state capitol. Misreading the fuzzy xray may have been an accident, but sending my grandfather home unable to walk or care for himself, in terrible pain with no pain medication for his broken hip was not an accident. We didn't profit from it, but the physician did have to get an attorney/attorneys when he faced the medical board - so you can blame people like him for the increase in your rates. Had he said he was sorry and not been such an a-- to my grandfather he wouldn't have had to go try to defend himself. He lost, by the way. Had to pay a fine and take some classes. He probably deserved more than he got, but it was something.

ClinkShrink said...

The other issue to think about in this case is that it creates a new avenue for recovery even when the treatment is done properly. In this case, neither expert could connect that patient's injuries to improper surgery. The only way she could have collected for damages was on the basis of lack of informed consent.

This means that if a psychiatrist properly diagnoses and treats a condition, gives the correct medication and monitors it properly, the patient can still go after the doctor if she experiences a 1 in 10,000 complication simply by saying, "If I had known X about my doctor I would have chosen to be treated by someone else." Remember there is nothing in the appellate opinion to limit the range of potential background questions. We are focussing on his responses to direct questions by the patient, but the opinion wasn't really designed to delineate what duties (if any) are owed when patients ask personal questions. The appellate opinion just opens the door, and I'm raising the 'what if' questions.

moviedoc said...

Lets make it psychiatric: A psychiatrist recommends lamotrigine and warns of the risk of fatal skin rash. The patient asks the psychiatrist whether any of her patients has suicided. She lies and says no. The patient sloughs her skin, almost dies, discovers the lie and sues. She says if she had know the doctor has lost a patient to suicide she would have found another psychiatrist.

Was informed consent inadequate because of the lie? How many docs cover all the possible adverse effects anyway? The usual standard is most likely and most serious.

I say it was not OK, but not malpractice.

Brief note about malpractice: It require that dereliction of duty lead directly to damage. I don't see that in the lie cases.

Anonymous said...

Maybe the moral of the story is don't lie to patients. Like I said earlier, I think it's the attitude of the physician that often leads people to take legal action. Sounds like she was quite angry about the lying part, and justifiably so. He created the mess he found himself in.

I think lying to get someone to sign an informed consent document, if it's not considered malpractice, then it should be. The contract should not be considered valid. What's the point in having an informed consent document if you can lie about anything you want to get someone to sign it?

What comes to mind are people who lie about their credentials when being hired for a job, and are later charged with fraud. They should be. I don't see any difference here. She likely wouldn't have done business with him had he told the truth. I wouldn't have.

Anonymous said...

Clinkshrink writes, "This means that if a psychiatrist properly diagnoses and treats a condition, gives the correct medication and monitors it properly, the patient can still go after the doctor if she experiences a 1 in 10,000 complication simply by saying, "If I had known X about my doctor I would have chosen to be treated by someone else."

The question I would have is did the physician lie about the 1 in 10,000 complication? Or did the physician knowingly withhold information that they knew was important to the patient?

A personal example - I had a physician try to talk me in to ECT several years ago. I explained that I didn't want to do it, because I didn't want to accept the risks of permanent memory loss. He denied those risks at first. He told me it was cooked up by the scientologists and anti-psychiatry folks and assumed my resistance was due to having seen the movie One Flew Over a Cuckoos Nest (which I had not seen, by the way). I finally got him to concede it was a risk, a risk I wasn't willing to take. I don't care how small the risk is or if the physician thinks it's worth it. They better tell me the truth. He wasn't the one having the procedure and accepting those risks. I was. As long as I am legally competent, the decision is mine. I have real issues about trying to coerce someone into signing an informed consent document by lying. That's unethical. I continue to be glad I didn't do it. It's a very individual decision.

So, the questions that are relevant to me are:

1. Is the physician knowingly withholding information that they believe is important to a patient and might impact their decision to consent to treatment?

2. Are they lying about risks?

If the answer is yes, to either question, then there's a decent chance the physician will find themselves in trouble when things don't go well. Best to be honest.

The Shrink said...

Do patients have a right to know anything they want about their doctor? No.

Can patients expect their doctor not to lie? Yes.

In the UK our regulator, the General Medical Council take a very extreme stance on safeguarding the reputation and public perception of doctors.

As such, I could see that if a patient asked for details beyond the material facts necessary for valid consent, the clinician should say they weren't in a position to disclose that. The doctors then doesn't lie. The patient then gets to make a choice on the relevant facts (and not on how persuasive or glossy the clinician's people skills are).

Asking if someone is reliable/good when they're someone you're paying a service for isn't a good way to reassure yourself they're decent. Would you check out a used car salesman by asking, "Are you trustworthy, have you ever ripped anyone off?"

The medicolegal issue of consent should surely be based on salient clinical matters.

The professional issue of lies can be either avoided by not disclosing additional/personal details, or by referral of an untrustworthy doctor to their regulatory body, no?

Anonymous said...

@ Anon, since when do we not ask lawyers about their success rates?! I don't have much experience with the legal system, but to the best of my knowledge, most people research a lawyer before hiring them. I've never hired a lawyer, but if I needed legal representation, I'd certainly find out what kind of experience and success a lawyer had before asking them to represent me! (It may be somewhat less if it's a lawyer that takes the case on contingency, but then you at least have the guarantee that they're really motivated to win.)

Anonymous said...

The Shrink writies, "The professional issue of lies can be either avoided by not disclosing additional/personal details, or by referral of an untrustworthy doctor to their regulatory body, no?"

Yeah, I agree it's an issue for the medical board. But, I don't have any problem with her having filed a lawsuit. The reason is, I think the informed consent document was invalid. Treating patients without having obtained informed consent is a bigger issue, in my opinion.

In the UK, does the General Medical Council require physicians to report criminal convictions and is this open to the public? What about malpractice issues? I live in the U.S. and in my state (requirements may vary by state) physicians are required to report criminal convictions, malpractice, etc and this is posted online for the public to access. The problem is physicians who are convicted of crimes (like my former psychiatrist) don't always report it, so I'm not sure how effective it is in practice. There is no absolute right to privacy for physicians, at least not in my state.

Anonymous said...

If the doctor isn't comfortable disclosing something, then they're free to tell the patient they won't discuss it. The patient is free to walk away or ask for a new doc who doesn't have anything to hide. It's simple, and I don't really give a crap if it's "awkward" for the doc to own up to his mistakes or misfortune.

They even let me know if they're going to be letting a student do my blood draw, and they sure as hell better let me know if there's any risk I'm entrusting my life to a hack. (I once found out a doc who tried to push a drug on me represented Lily or whoever was making tht I wonder if they should be required to provide all this info up front, whether asked or not. I have an effing right to know who is slicing me up.)

Meg said...

But Clink, this isn't a case of the patient saying "If only I had known about this" it's a case of the patient saying "If the doctor hadn't lied about this when I asked." Those are two very different things. In the former case, you could say that it was something that the patient hadn't thought of beforehand and that the doctor wasn't obligated to disclose. In the latter, the patient did think about it beforehand, expressed that they considered it to be something that they needed to know, and the doctor deliberately gave them inaccurate information. You can't draw a line from one to the other that easily.