(Medical Malpractice – Part 10 in a Several Part Series)

(This is the 10th part in a multiple part series pertaining to Medical Malpractice Law in Washington State. To read part one click here. To read part two click here. To read part three click here. To read part four click here. To read part five click here. To read part six click here. To read part seven click here. To read part eight click here. To read part nine click here.)

Informed Consent

An informed consent claim focuses on a patient’s informational medical rights; the right to receive sufficient information from the treating health care provider regarding the medical condition in issue and treatments for the condition to enable the patient to make an informed decision regarding the risks and benefits of treatment alternatives—including no treatment.

A health care provider’s duty to inform is grounded in the concept of “patient sovereignty,” a patient’s right to chart his own medical destiny and to do so intelligently and with dignity. Backlund v. Univ., of Wash., 137 Wn.2d 651, 663,975 P.2d 950 (1998); see also, Miller v. Kennedy, 11 Wn. App 272, 282-283, 522 P.2d 852 (1974); aff’d per curiam 85 Wn.2d 151,153, 530 P.2d 334 (1975).

Informed consent claims and negligent claims are distinct theories of recovery. Gomez v. Sauerwein 180 Wn.2d 610, 616-617, 331 P.3d 19 (2014). In Gomez, the Court held that a health care provider may not be liable on an informed consent claim when the provider has ruled out or not considered a specific diagnosis:

“Simply put, a health care provider who believes that a patient does not have a particular disease cannot be expected to inform the patient about the unknown disease or possible treatments for it. In such situations, a negligence claim for medical malpractice will provide the patient compensation if the provider failed to adhere to the standard of care in misdiagnosing or failing to diagnose the plaintiff’s condition.”

Id., 618.

Therefore, a claim based on the failure to diagnose or on an incorrect diagnosis is a negligence claim. A claim based on the failure to inform the material facts—once a correct diagnosis has been made—is the basis of an informed consent claim.

An informed consent claim requires proof by a preponderance of the evidence that: (1) the health care provider failed to inform the patient of a material fact or facts related to the proposed treatment; (2) the patient consented to the treatment without being “aware of or fully informed of  such material facts or facts”; (3) a reasonably prudent patient under similar circumstances would not have consented to the treatment had he or she been informed of the facts; and (4) the treatment proximately caused injury to the patient. RCW 7.70.050(1)(a)-(d).

A health care provider does not have an obligation to disclose every possible risk. Smith v. Shannon, 100 Wn.2d 26, 30-31, 666 P.2d 351 (1983). The obligation is to disclose material, important, and medically significant risks. Id.

With respect to the need for expert testimony, Smith held that, “expert testimony is necessary to prove the existence of a risk, its likelihood of occurrence, and the type of harm in question. Once those facts are shown, expert testimony is unnecessary.” Id., 33-34. The Smith Court refers to this inquiry as determining the “scientific nature of the risk” and the “existence, magnitude, and other scientific characteristics” of a risk. Id., 33-34.

Expert testimony is not required with respect to whether or not a reasonably prudent patient in the position of the plaintiff would have consented.

Washington’s has four statutes, contained in Chapter 7.70, that govern informed consent claims.  RCW 7.70.050 essentially codifies Miller and Smith. RCW 7.70.050(1) sets out the four elements of a legal claim based on the failure to obtain informed consent. RCW 7.70.050(2), defines “material facts.” A fact’s materiality is determined by the objective reasonably prudent patient standard, would a reasonably prudent patient attach significance to it in deciding on whether to “submit” to the treatment? RCW 7.70.050(3), establishes and describes the type of material facts that must be proved by expert testimony. RCW 7.70.050(4), is a provision that implies consent when emergent circumstances exist and neither the patient nor his representative can consent.

RCW 7.70.060 describes two processes for obtaining informed consent. RCW 7.70.060(1), contains the elements that, if set out in a consent form signed by a competent patient or his representative, constitutes prima facie evidence that informed consent was obtained. RCW 7.70.060(2), describes a process by which consent is obtained through “shared decision making,” which includes the healthcare provider using a “patient decision aid” defined as a “written, audiovisual, or online tool” that provides a “balanced presentation” describing the condition and treatment options, benefits and harms. Shared decision making informed consent is memorialized on a signed acknowledgement of shared decision making. Under either process, a signed writing is prima facie evidence that consent was obtained. The burden on the patient to rebut a form signed pursuant to RCW 7.70.060(1), is by a preponderance of the evidence. The patient’s burden to rebut a RCW 7.70.060(2) acknowledgement of shared decision making is clear and convincing. Under either process, the failure to obtain a signed writing is not admissible as evidence to establish the failure to obtain informed consent. RCW. 7.70.060(5).

RCW 7.70.065 sets out the priority of persons who are authorized to provide consent on behalf of a patient who is not competent. RCW 7.70.068 provides that a signed mental health directive consenting to treatment, equates to informed consent.

In the next post, we will address some of the particular aspects of proximate cause that may arise in the context of medical malpractice lawsuits.

(This article was written by Mark Johnson and Michael Sprangers. Mark and Michael’s practice focuses on medical malpractice, legal malpractice, and serious personal injury lawsuits. Their law firm Johnson Flora Sprangers PLLC is located in the Belltown neighborhood of Seattle, Washington.)  

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