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  • Track 45:58

Physicians Disclosing Success Rates

by Attorney Frank E. Reardon

April 1997


Donna Johnson was referred to neurosurgeon Richard Kokemoor, in 1990, for diagnosis and treatment of headaches. CT scan revealed an aneurysm at the rear of Johnson’s brain, at the bifurcation of her basilar artery.  Dr. Kokemoor recommended clipping the aneurysm, Johnson consented and Kokemoor performed the surgery.  The aneurysm was successfully repaired but Johnson suffered serious complications which impaired her vision, speech, motor and muscle control, and left her unable to walk.  She sued Dr. Kokemoor, alleging he negligently failed to obtain her informed consent to perform the operation.  But, because the repair was successful, she dropped an additional claim that Kokemoor’s performance was below the standard of care.


Wisconsin’s informed consent law recognizes a patient’s right to know about significant potential risks involved in a proposed surgery or treatment.  A physician is required to disclose information that would be “material” to a reasonable patient in similar circumstances.  Wisconsin also requires a physician to inform a patient about the availability of “all alternate, viable medical modes of treatment” and about their benefits and risks.


Johnson argued that Kokemoor didn’t give her enough information.  She said his explanation was deficient in three ways: one, he should have told her about the risks of this particular procedure; two, he should have told her that her risk was greater with Kokemoor performing the surgery than a with a more experienced surgeon; and three, he should have referred her to the Mayo Clinic just 90 miles away. 


At trial, Johnson recalled that Kokemoor compared the risk to undergoing tonsillectomy, appendectomy, or gall bladder surgery.  She understood from him that the risk of death or serious injury as a result of the surgery was 2 percent.  Without surgery, she understood the risk of the aneurysm rupturing started at 2 percent but increased at 2 percent per year. 


Kokemoor recalled mentioning the 2 percent risk of death or stroke but also remembered explaining that the location of her aneurysm would increase Johnson’s risks.  He couldn’t say how much exactly.  He remembered discussing that risks are calculated over large populations but, for Johnson, the risk would either occur or not.  If it did, the risk to her would be 100 percent.  He recalls saying that all surgical procedures contain risks, even tonsillectomies or appendectomies.


Using statistics to illustrate risks during the informed consent process can be tricky. Kokemoor’s attempt to explain that risk is calculated over large populations was good.  He was clearly trying to convey an idea that is hard for patients to conceptualize - patients do not have 2 percent of a stroke,. . . . . . 2 percent of patients have a stroke.  The trouble seemed to be in the 2 percent figure.  Kokemoor took this number from mortality and morbidity rates for both posterior and anterior aneurysms.  An article introduced at trial discussed the mortality and morbidity rate for posterior aneurysm surgery alone.  For one of the world’s leading aneurysm surgeons, the rate was almost 11 percent, and it increased to almost 30 percent for less experienced surgeons. The jury in this case thought describing Johnson’s risk as  “something greater” than 2 percent was insufficient in light of the rest of the data. 


Another slice of their conversation illustrates how physicians can get themselves into trouble by giving partial information to patients.  Johnson apparently asked Kokemoor how many times he had performed this procedure.  Both agreed that Kokemoor said he had done it “several” times.  Johnson asked Kokemoor to be more specific and he said, “dozens - lots of times.”  Kokemoor based his answer on the 30 aneurysm surgeries he had performed during residency and the six he performed after that.  Johnson, and the jury, believed Kokemoor should have told her that only two of those procedures involved posterior aneurysms. 


Wisconsin has more specific requirements in its informed consent statute than many other states.  For example, the Wisconsin statute requires a physician to describe the risks and benefits of all viable alternatives to the surgery being discussed, which is why Johnson alleged Kokemoor should have given her better information about the Mayo Clinic.  Most states do not explicitly require a physician to decribe all viable alternatives.


The Court in Johnson v. Kokemoor cautioned against extrapolating too much from this case.  They quoted the Rhode Island Supreme Court in saying, “The amount of disclosure can vary from one patient to another because what is reasonable disclosure in one case may not be reasonable in another.”  But Johnson’s case was based on the argument that Kokemoor did not disclose material information.  Many other states, including Massachusetts, also use this materiality standard - requiring the physician to disclose information that would be significant to a reasonable patient in similar circumstances.  If the statistics and comparative information were material to Johnson, should physicians everywhere disclose their own experience level and comparative success rates to patients as a routine part of the informed consent process? 


No.  Even the judges in Wisconsin said that a discussion of statistics is not required, that Kokemoor himself waded into it.  However, if patients ask their physicians specific questions about training, experience or even malpractice history, physicians should answer these questions honestly.  And, if physicians are unsure about how to characterize their own experience, they should be specific.  Kokemoor, for example, would have been on more solid ground if he had told Johnson how many surgeries he performed duringhis residency, how many after, and how many resembled the procedure Johnson required.