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    Consent Forms

    by Attorney Frank E. Reardon

    September 2000

    Healthcare Law, Litigation & Public Policy   Medical Licensure & Discipline ♦ Employment Board of Registration


    In medical malpractice cases, the question of whether the patient consented to the medical treatment provided is often a major issue.  Detailed consent forms which outline the risks of the procedure can be important documents to defend against informed consent claims.  However, even if a patient is informed about the risks of treatment, they must also be informed about the indications for such treatment as well as alternative methods of treatment.  In Rhode Island, an ophthalmologist was sued for negligently recommending cataract surgery to a patient who claims she was not complaining about vision loss in the case of Kenny v. Wepman. 

                Dr. Wepman served as Irene Kenny’s treating ophthalmologist for several years.  During her annual check up in June of 1995, Dr. Wepman suggested that Ms. Kenny should have surgery to remove a cataract in her left eye.  The surgery was then performed on August 24, 1995.  During the procedure, a complication arose when a portion of the nucleus of the eye dislodged into the vitreous area of the eye.  Ms. Kenny lost vision in her left eye despite Dr. Wepman’s attempts to remove the nuclear debris.  A subsequent surgical procedure performed by a different ophthalmologist was unsuccessful in restoring Ms. Kenny’s vision. 

                Ms. Kenny file suit against Dr. Wepman on February 3, 1997 in Superior Court alleging that Dr. Wepman was negligent in performing the surgery, that he failed to obtain her informed consent for the operation, and that he was negligent in recommending surgical treatment.  The jury returned a verdict in favor of Dr. Wepman on all counts.  Ms. Kenny then filed a motion for a new trial.  Ms. Kenny was granted a new trial on her counts of negligent recommendation of surgery and informed.  Dr. Wepman appealed the allowance of a new trial. 

                In assessing the issue of whether a new trial should have been granted, the Supreme Court of Rhode Island looked at the role of the trial judge in ruling on the motion and the evidence presented at trial.  When ruling on a motion for a new trial, the trial judge serves as a thirteenth juror by making an independent appraisal of the evidence based upon the instructions to the jury.  Just as the trial jurors, the trial judge can weigh evidence, assess witness credibility, reject evidence, and draw reasonable inferences from the testimony and evidence on the record.  A trial judge’s allowance of a new trial will be upheld as long as the judge conducts an appropriate analysis, does not overlook or misconceive material evidence, and is not otherwise clearly wrong. 

                In support of his claim that the trial judge erred in granting a new trial on the count of negligent recommendation of surgery, Dr. Wepman argued that the trial judge merely overlooked the testimony of his expert witnesses who testified that the surgery was warranted.  The Supreme Court disagreed and found that the trial judge based his decision on an in-depth review of the medical records.  The trial judge found that Dr. Wepman produced only one entry in the medical record indicating that Ms. Kenny complained of glare, difficulty driving and night blindness.  The trial judge questioned the reliability of this one entry since it was prepared on the eve of the operation and because it contradicted the Pre-Surgical Evaluation form which contained no indications of these complaints.  Based upon the information contained in the medical records, the trial judge determined that Dr. Wepman’s assertion that Ms. Kenny complained of vision problems was unworthy of belief.  The trial judge also relied upon the undisputed testimony of Ms. Kenny’s expert that the mere presence of a cataract does not justify surgery.  In light of the trial judge’s reasoning, the Supreme Court of Rhode Island found that the trial judge did not overlook or misconceive material evidence in granting a new trial on the negligent recommendation count.    

                The Supreme Court of Rhode Island likewise upheld the trial court’s decision to grant a new trial on the informed consent count.  In analyzing the evidence presented, the trial judge found that Ms. Kenny could not have given informed consent because Dr. Wepman never advised her that surgery is appropriate only when the cataract causes visual problems or interferes with a person’s lifestyle.  Dr. Wepman argued that the surgery was justified based upon Ms. Kenny’s desire to have perfect vision in her left eye.  The Supreme Court of Rhode Island held that the trial judge was not clearly wrong in concluding that Dr. Wepman failed to advise Ms. Kenny of viable alternatives by failing to advise her that cataract surgery would be justified if she were experiencing vision loss or other detrimental effects.  The trial court’s decision that Ms. Kenny would have chosen to forgo surgery if she was provided with this information was also upheld by the Court.  As a result, the case was remanded back to Superior Court for a new trial on the issues of negligent recommendation and informed consent. 

                In light of the Kenny decision, physicians should take efforts to set forth the rationale for a treatment plan in a patient’s medical record.  If a physician is suggesting surgery to treat a condition, they must clearly set forth the indications for such a procedure before the patient agrees to have surgery.  Informing the patient that there are risks inherent in the procedure is not enough if the patient does not understand the rationale behind the surgical treatment plan as well as the alternative methods of treatment.  Clear documentation of the rationale for treatment, the alternative methods of treatment, the risks inherent in various types of treatment is essential to defend claims of negligent recommendation and lack of informed consent.