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    Informed Consent v. Surgeon's Judgment

    by Attorney Frank E. Reardon

    January 1995

    REARDON LAW OFFICE

    The case of Lana Fox v. Smith began when Lana Fox checked into the Golden Triangle Regional Medical Center for an outpatient laparoscopy. It was to be performed by Dr. Perrin Smith. During the procedure, Dr. Smith removed Mrs. Fox's intrauterine device, which he observed to be fragmented and degenerating. Then he probed the uterus to ensure that no particles of the damaged IUD remained in Mrs. Fox’s body. After the procedure, Mrs. Fox sued Dr. Smith, claiming he had no right to remove the IUD. She also claimed that she had specifically requested that the IUD not be removed. Dr. Smith responded the Mrs. Fox entrusted him with the authority to use his best medical judgment about whether the IUD should be removed or whether it was safe to leave it in.


    In this case, everyone agreed that Mrs. Fox signed a consent  form that states the following: I recognize that, during the course of the operation, unforeseen conditions may necessitate additional or different procedures than those set forth. I therefore, further authorize and request that the above named surgeon, his assistants or his designees perform such procedures as are, in his professional judgment, necessary and desirable, including but not limited to procedures involving pathology and radiology. Dr. Smith rested his case on this consent form and three cases from different jurisdictions which supported the notion that no battery existed in the presence of such a consent form.


    One of the cases relied upon by Dr. Smith was Davidson V. Shirley, a U.S. Fifth Circuit court of Appeals decision. In that case, the patient sued her physicians for performing a therapeutic hysterectomy during a Cesarean section, without her permission. That court concluded that the consent form, signed by the patient, allowed for therapeutically necessary procedures, and did not mandate that the phrase “therapeutically necessary” be interpreted as lifesaving measures only. In Fox, Dr. Smith defended his actions by testifying that if he had not removed the IUD, the medical possibilities for Mrs. Fox were as follows: her infection, pain, and prolonged menstrual bleeding would have continued; she would have had a greater chance of pelvic abscess, of needing a hysterectomy, of bowel obstruction necessitating a resection; a greater chance of losing her ovaries, of being infertile, and of dying, given the positioning of the IUD. Finally, she would have had a chance of seriously wounding a sexual partner due to a partially extruded IUD.


    Despite this testimony and evidence in the record that indicated Mrs. Fox’s IUD had been in place more than twice as long as recommended by medical standards, the Mississippi Supreme Court ruled that summary judgment for the physician was unwarranted. The court said it was a question of fact for a jury to decide whether or not Dr. Smith could exercise his medical judgment for Mrs. Fox by removing her IUD without her express consent.


    The Mississippi Supreme Court said that for Dr. Smith’s consent form to be conclusive, (a) the court must ignore Mrs. Fox's testimony about her wish that the IUD not be removed and (b) the record must clearly indicate that the removal of an IUD is both necessary and unforeseen, given that a laparoscopy was the authorized procedure. In other words, the court upholds that a doctor cannot simply follow his or her medical instincts about what procedures need to be performed for the safety of a patient, even in the existence of a signed consent form that seems to give a doctor just that authority. Clearly, doctors must be concerned with the wishes of their patients and their patient’s right to control their own bodies. In the Fox case the court’s decision went beyond that concept, to suggest that whether or not a procedure is necessary and unforeseen is a jury question and one that cannot be decided as a matter of law.

     

    While this case does not necessarily represent a trend, it does represent a troubling precedent. Very often, the recollection of the patient is at odds with the recollection of the physician regarding their consent discussion. As a result, doctors need to carefully chart both the content of their informed consent discussion as well as their medical reasons for providing any treatment  not explicitly agreed to prior to the start of an authorized procedure.


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