In this next article we will be discussing the fiduciary duty of a physician to make a full and fair disclosure of all facts regarding the illness, and whether or not that includes life expectancy information.

         In the California case of Arato v.  Melvin Avedon M.D.  the widow and children of a patient who died of pancreatic cancer brought suit for negligence against doctors who treated the deceased, alleging that the doctors breached their fiduciary duty to make a full and fair disclosure of all facts regarding the illness, including life expectancy information. Plaintiffs contend that if they had known of the decedent's true condition, they would have conducted their business and personal affairs differently, and that they suffered losses thereby.

         The plaintiff was a successful 42-year old electrical contractor and part-time real estate developer when, early in 1980, his internist diagnosed a failing kidney. on July 21, 1980, in the course of surgery to remove the kidney, the operating surgeon detected a tumor on the "tail" or distal portion of the plaintiff's pancreas. Portions of the pancreas were removed, along with the diseased kidney. It was determined that the pancreas was malignant. Concerned that the cancer could return, the plaintiff's surgeon referred him to a group of oncology practitioners for follow-up treatment.

         During his initial visit to the oncologist, the plaintiff filled out questionnaire. Among the 150 questions asked was whether patients wished to be told the truth about their condition or whether they wanted the physician to bear the burden for them. The plaintiff checked the box indicating that he wished to be told the truth. By their own admission, neither the operating surgeon nor the treating oncologists specifically disclosed to the plaintiff the high statistical mortality rate associated with pancreatic cancer.  The plaintiff subsequently died from complications of the disease, and the family filed suit. The focal point of the law-suit is that the plaintiff's contend that the physicians were aware that pancreatic cancer has a high mortality rate associated with it and that had they known of Mr. Arato's imminent death they would have put their financial situation in order.

         The defendants contend that they did not have to provide the plaintiff with statistical information on life expectancy in order to obtain his informed consent to treatment. The court stated that each patient should be taken on a case by case basis as to what amount of discretion should be used with full disclosure of facts necessary to an informed consent. The plaintiff's pointed to pancreatic cancer mortality statistics as a reason that the treating physicians should have divulged Mr. Arato's life expectancy. The court replied that statistical morbidity values derived from the experience of population groups are inherently unreliable and offer little assurance regarding the fate of a particular patient. Plaintiff's claim that if they had known of Mr. Arato's life expectancy they would have conducted their business affairs differently. The court gave a short answer by stating "a physician is not the patient's financial advisor..." Moore v. Regents of University of California The court further stated that his treating physicians disclosed enough information relevant to  his decision to undergo a particular treatment and that he was told that pancreatic cancer is usually fatal.

        The court ultimately held that: (1) physicians do not have a duty as a matter of law to disclose statistical life expectancy data; (2) physicians do not have a duty to disclose information relevant to a patient's nonmedical interests.

        In conclusion it is important to remember that each patient is an individual with separate problems. That each patient's mental and emotional condition is important and may be critical to their medical condition. When discussing the element of risk a certain amount of discretion must be used with the full disclosure of facts necessary to informed consent.

    Duty to Tell Patients Life Expectancy

    by Attorney Frank E. Reardon

    November 1993

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

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