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At Your Defense: Informed Consent: When Standard of Care Might Not Protect You

Reyes, Carlo MD, JD

doi: 10.1097/01.EEM.0000425847.58895.fc
At Your Defense

Dr. Reyes is an assistant professor of pediatrics and a clinical instructor of emergency medicine at Olive View/UCLA Medical Center, a health law attorney with Boyce Schaeffer, LLP, in Oxnard, CA, and a founder and the CEO of, which provides medical-legal education for doctors starting in medical school, through residency training, and beyond.





Just when you think you've heard everything.

Plaintiff's attorneys are convincing the courts that physicians who fail to explain to patients all reasonable alternatives for managing a disease may be negligent for violating the doctrine of informed consent, even if the physician's stated recommendation meets the standard of care. (e.g., Bubb v. Brusky, 768 N.W.2d 903 [2009].) On one hand, a medical malpractice claim may be anticipated if a plaintiff's expert can establish that the defendant-physician did not meet the standard of care by failing to order a study that would have diagnosed a disease. But what if the defendant-physician met the standard of care, and yet reasonable diagnostic and treatment alternatives, not discussed with the patient, may have resulted in a more favorable outcome?

The plaintiff in Bubb v. Brusky was diagnosed with a TIA after CT and other tests were obtained and his symptoms resolved. Dr. Brusky discussed the case with the on-call neurologist, who offered to provide outpatient follow-up, and then Dr. Brusky discharged the patient home because his symptoms had resolved and he wanted to go home.

The next day he had a stroke. The patient filed a complaint in state court, claiming that Dr. Brusky failed to inform him of alternatives to outpatient management for TIA, including an inpatient workup and a carotid ultrasound. The patient contended that he would have consented to the inpatient workup, which would have ultimately prevented the stroke. The circuit court dismissed the informed consent claim, and the court of appeals affirmed the circuit court's decision.

The Wisconsin Supreme Court, however, reversed and remanded the decision to circuit court, holding that “Wisconsin Statute 448.30 requires any physician who treats a patient to inform the patient about the availability of all alternate, viable medical modes of treatment, including diagnosis, as well as the benefits and risks of such treatments.” Id. at 905.

Applying the informed consent doctrine to management decisions brings patient autonomy and independent medical judgment head-to-head: how does this play out in the end? The informed consent doctrine was not originally intended to encroach on a physician's medical judgment. Plaintiff's attorneys and courts have conflated this doctrine to the point where a physician's independent medical judgment is at risk. The reason for this will be clearer after analyzing the movement behind informed consent and behind a newer concept: shared decision-making. I believe both are really the same movement in different clothing: patient autonomy and patient-centered care.

The Informed Consent Doctrine is an independent cause of action, distinctly separate from medical negligence. Once the physician establishes that the patient has the capacity to make health decisions, the physician has the duty to disclose to the patient the proposed treatment and procedure, the attendant risks and benefits of the treatment and procedure, alternatives to the treatment and the risks and benefits, the risks and benefits of non-treatment, and potential conflicts of interests, such as financial ones.

Every state has codified this doctrine into statute, but the standard by which a physician should disclose medical information differs in each state, and can be based on the “reasonably prudent physician” standard or the “reasonable patient” standard. A physician's informed consent in some states is judged by what a reasonable physician would disclose to a patient, but it is judged in other states by what a reasonable patient would want the physician to disclose to him. One is less patient-centered, the other more so.

The purpose of informed consent is to honor a patient's autonomy in making medical decisions. A physician must provide all material facts for the patient to make the most informed decision. Informed consent is not to allow the patient to make medical judgments. I am a patient advocate and proponent of patient autonomy and patient-centered care, but respect for a patient's autonomy should not threaten the independent judgment of a physician.

Let me digress to make a point. Chemical codes have little evidence basis in resuscitation, and yet we make room for it in our armamentarium to respect a patient's advanced directives. In other words, we have relinquished our independent physician judgment to make room for a modified DNR order that originated in our state legislatures that makes little scientific sense.

Which decisions should patients make if we share decision-making? The Brusky holding should alert physicians that they must fully inform patients of the medical decision-making process, and document it on the chart. The court in Brusky likely confused the informed consent doctrine with a new concept, shared decision-making, in which “the physician shares … all relevant risk and benefit information on all treatment alternatives and the patient shares … all relevant personal information that might make one treatment or side effect more or less tolerable…. [T]hen both parties use this information to come to a mutual medical decision.” (Am J Law Med 2006;32[4]:429.)

I disagree with some authors on shared decision-making, especially with its limited applicability to emergency medicine, but the concept should remind us to keep our patients fully informed with our medical decision-making process to demonstrate that the patient's best interests are always our main focus.

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