In a South Carolina medical malpractice case in which the plaintiff alleged that the defendant neurosurgeon negligently removed an excessive portion of the right L5/S1 facet joint and failed to install instrumentation and perform fusion to properly support the spine following the partial medial facetectomy he performed on August 22, 2017, the plaintiff further alleged that at the time leading up to, during, and after the surgery, the defendant neurosurgeon had alcohol use disorder and had relapsed in early 2016, consuming increasingly more alcohol every day that he was not on call. According to the plaintiff’s complaint, the defendant neurosurgeon was charged with driving under the influence (DUI) in December 2017 and, as a result of the charge, reported his relapse and ongoing alcohol misuse to his employer. The plaintiff alleged that she was never informed of the defendant neurosurgeon’s alcohol misuse and did not learn of it until late 2020. She asserted that if she had been informed that the defendant neurosurgeon was in the midst of a relapse, she would have chosen not to proceed with the surgery.
The plaintiff argued that the informed consent doctrine does not limit required disclosure of material risks involved in the procedure to only the physiological risks, and that the doctrine is broad and requires disclosure of the treating physician’s personal, medical, and behavioral issues.
Informed Consent
The Court of Appeals of South Carolina stated in its December 13, 2023 opinion: “Under the doctrine of informed consent, . . . a physician who performs a diagnostic, therapeutic, or surgical procedure has a duty to disclose to a patient of sound mind, in the absence of an emergency that warrants immediate medical treatment, (1) the diagnosis, (2) the general nature of the contemplated procedure, (3) the material risks involved in the procedure, (4) the probability of success associated with the procedure, (5) the prognosis if the procedure is not carried out, and (6) the existence of any alternatives to the procedure … [T]he scope of a physician’s duty to disclose is measured by those communications a reasonable medical practitioner in the same branch of medicine would make under the same or similar circumstances.”
The Court of Appeals of South Carolina stated: “Our state’s informed consent doctrine is not statutorily defined, nor is it narrowly defined to encompass only specific physiological risks. Our doctrine is broad and flexible, but it is not without its boundaries. The third Hook element requires disclosure of “material risks involved in the procedure.” 281 S.C. at 547, 316 S.E.2d at 694-95 (emphasis added). The requirement is procedure-specific, not physician-specific. Further, the risk must be involved in the procedure itself. The personal life factors of the physician performing the procedure are not inherent to the procedure and are not contemplated by Hook or its progeny. As a result, we affirm the circuit court’s conclusion because our state’s informed consent doctrine does not require a physician to disclose personal life factors.”
Source Chabek v. AnMed Health, Opinion No. 6039.
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