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Does a surgeon have to tell you if she’s never performed this surgery before?

Posted Thursday, March 23, 2017 by Tyler Goldberg-Hoss

Not infrequently we get calls about surgeries gone wrong. Occasionally the caller is upset not just because of how the surgery went, but also about what information he or she knew prior to surgery. In particular, sometimes I hear a variation of “If I had known that this was the second time he’d ever done this surgery, I would never have agreed to it.”

When someone says something like this, they are essentially making a claim that they were not properly informed sufficient to give the surgeon consent to do the surgery. Every health care provider who is proposing a course of treatment has to tell the patient about all the “material facts” relating to the treatment, including risks and alternatives.

A “material fact” is one that a reasonably prudent patient in the same circumstance would attach significance to in deciding whether to go forward with the proposed treatment.

So the question is: is a surgeon’s lack of experience a “material fact”?

The answer, it may surprise you, is probably not.

One case in Washington involved a gallbladder removal. The surgeon had participated in a two-day class on how to do it, which included hands on participation in performing the procedure on three pigs. Soon after he met with a patient and determined she needed her gallbladder removed. He didn’t tell her he had never performed the procedure on a patient before.

The surgeon performed the procedure and injured the patient’s bile duct. She filed a lawsuit, and the jury determined that the surgeon’s experience was a material fact that needed to be shared. However, the Court granted the surgeon’s motion that, as a matter of law, the surgeon’s experience was not a material fact under the informed consent statute. The Court agreed.

The patient appealed, and the appellate court affirmed the trial court, saying “a surgeon’s lack of experience in performing a particular surgical procedure is not a material fact for purposes of finding liability predicated on failure to secure an informed consent.”Whiteside v. Lukson, 89 Wash. App. 109, 112, 947 P.2d 1263, 1265 (1997).

A similar case was decided in similar fashion in 2007. In that case, a patient sued her surgeon after complications from a laparoscopic hernia repair. The surgeon in that case had only performed one other such surgery.

The Court did not rule out that some set of facts would make a physician’s experience a “material fact”, just not this one:

“we are not categorically holding that a physician’s inexperience is never material to an informed consent claim. There may well be situations where evidence of a physician’s experience would be a significant factor in a patient’s decision to undertake a particular course of treatment. But such a situation is not present here.”

Housel v. James, 141 Wash. App. 748, 756, 172 P.3d 712, 716 (2007).

Although regular folks – including the jury in the Whiteside case – may think that a physician’s experience (or lack thereof) performing a procedure is something that should be disclosed, Washington Courts think otherwise. At least for now.

Chemnick | Moen | Greenstreet
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