Iowa Appellate Court Says Surgeon Did Not Have To Disclose His Inexperience

162017_132140396847214_292624_nThe Court of Appeals of Iowa (“Appellate Court”) held in its opinion filed on January 25, 2017 that the defendant heart surgeon did not have a duty owed to his patient to advise him regarding the surgeon’s lack of experience in performing the proposed surgery in order to obtain proper informed consent from the patient. The Appellate Court held that the defendant surgeon “did not have a duty to inform [the plaintiff] of his experience, or lack thereof, in performing the procedure.”

The defendant heart surgeon had performed an unsuccessful Bentall procedure on the plaintiff, which is the replacement of the aortic valve, the aortic root, and the ascending aorta. The surgical procedure was performed by the defendant on January 22, 2004, which required completely stopping the plaintiff’s heart and placing him on bypass. When the procedure was completed, the defendant heart surgeon was unable to get the left ventricle of the plaintiff’s heart restarted. The defendant and another surgeon ultimately placed an assist device in the plaintiff’s chest that replaced the function of the left ventricle. Following the unsuccessful surgery, the plaintiff experienced numerous complications and he was in a coma for a period of time. The plaintiff subsequently had a heart transplant on October 22, 2006, after which his necessary medications led to other health issues, including an increased risk of cancer.

The plaintiff’s Iowa medical malpractice lawsuit alleged that the defendant surgeon had failed to obtain adequate informed consent by (1) failing to advise the plaintiff that he had a “super bad heart” pre-surgery with an increased risk of mortality and (2) that the defendant was required to inform the plaintiff that he had never performed the procedure before.

The crux of the plaintiff’s medical negligence claim was that because the plaintiff’s surgery had such a high likelihood of success, it must have been the negligent action (or inaction) of the defendant heart surgeon that caused the failure of the left ventricle. The defendant contended that he had done nothing wrong in either performing the Bentall procedure or in the steps he took afterward to try to restart the plaintiff’s left ventricle, but rather the plaintiff’s left ventricle had failed due to extreme exhaustion of the heart.

Informed Consent

The Appellate Court stated that in Iowa, in order to succeed in a claim for failure to obtain informed consent, the patient must establish: (1) the existence of a material risk unknown to the patient; (2) a failure to disclose that risk on the part of the physician; (3) disclosure of the risk would have led a reasonable patient in plaintiff’s position to reject the medical procedure or choose a different course of treatment; and (4) injury.

The Appellate Court stated that the patient ordinarily will be required to present expert testimony relating to the nature of the risk and the likelihood of its occurrence, in order for the jury to determine, from the standpoint of a reasonable patient, whether the risk is a material one.

Iowa Code section 147.137 (2007) provides, “A consent in writing to any medical or surgical procedure or course of procedures in patient care which meets the requirements of this section shall create a presumption that informed consent was given . . . [a] consent in writing meets the requirements [if it] Sets forth in general terms the nature and purpose of the procedure or procedures, together with the known risks, if any, of death, brain damage, quadriplegia, paraplegia, the loss or loss of function of any organ or limb, or disfiguring scars associated with such procedure or procedures, with the probability of each such risk if reasonably determinable.”

The Appellate Court noted that Iowa Code § 147.137(1) is silent as to any physician-specific information that must be disclosed to meet the informed-consent requirements. The Appellate Court held “We agree with the district court that the plaintiffs’ claim for failure to obtain informed consent based on [the defendant’s] lack of inexperience is not a basis for recovery; [the defendant] did not have a duty to inform [the plaintiff] of his experience, or lack thereof, in performing the procedure. Summary dismissal of this informed-consent claim was appropriate as a matter of law.”

Source Andersen v. Khanna, No. 14-1682.

If you or a family member suffered serious injury as a result of medical negligence in Iowa or in another U.S. state, you should promptly find a local medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you or your family member in a medical malpractice case, if appropriate.

Visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your state who may assist you.

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This entry was posted on Sunday, February 5th, 2017 at 5:29 am. Both comments and pings are currently closed.

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