Informed Consent Doctrine
Under the common law doctrine of informed consent, a health care provider has a fiduciary duty to disclose relevant facts about the patient’s condition and the proposed course of treatment so that the patient may exercise the right to make an informed health care decision. The informed consent doctrine is based on the individual’s right to ultimately control what happens to his body. In Washington, the doctrine was later codified in RCW 7.70.050 and RCW 7.70.030.
RCW 7.70.030(3) codified that common law informed consent claim by stating that a patient can assert a claim when an “injury resulted from health care to which the patient or his or her representative did not consent.” RCW 7.70.050(1) then codified the elements required to prove such a claim: (a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment; (b) That the patient consented to the treatment without being aware of or fully informed of such material fact or facts; (c) That a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts; (d) That the treatment in question proximately caused injury to the patient.
Under RCW 7.70.050(1), the physician has a duty to inform the patient about “treatment” options; the physician does not have a duty to inform the patient about possible diagnoses. While treatment and diagnosis can at times overlap, a physician cannot be held liable for failure to secure informed consent if the physician misdiagnoses the patient and therefore remains unaware of treatment options for the undiagnosed condition. Informed consent claims and medical negligence claims are distinct causes of action that generally cannot be based on the same underlying facts. A plaintiff can prevail on a failure to secure informed consent claim even if that patient loses on the negligence claim.
The Washington Supreme Court held in the case it was deciding, “Dr. Hirsig ruled out a VAD based on Davies’ total clinical picture. He did not provide her with treatment options for a VAD because he did not know she had it. This set of undisputed facts is sufficient to support a medical malpractice claim. It is not sufficient to support an informed consent claim … a patient cannot bring an informed consent claim based solely on the physician’s misdiagnosis … when a health care provider rules out a particular diagnosis based on the patient’s clinical condition—including test results, medical history, presentation upon physical examination, and any other circumstances surrounding the patient’s condition that are available to the provider—the provider may not be liable for informed consent claims arising from the ruled out diagnosis under RCW 7.70.050.”
“[I]f a physician rules out a diagnosis based on a patient’s total clinical picture, then that physician has no duty to inform the patient about a condition of which the physician is unaware.”
The Washington Supreme Court concluded: “Dr. Hirsig failed to properly diagnose Davies with a VAD. Davies can and did bring a negligence action based on that misdiagnosis. But she cannot bring an informed consent claim where, as here, the physician ruled out the undiagnosed condition entirely. The physician is not required to obtain informed consent about taking further action to detect or mitigate a condition that the physician has ruled out.”
Source Davies v. Multicare Health System, NO. 100079-1.
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