Last Updated: Tuesday, December 30, 2008 8:17 AM CST
Court rules in doctor’s favor
By Daily News Staff
The third circuit court of appeals in Wausau has upheld a judge’s decision to prohibit an Oneida County jury from deliberating on whether a doctor whose patient bled to death following surgery should have obtained a second informed consent from the patient when his blood pressure began to drop.
Judge Neal A. Nielsen allowed the jury to decide only whether Dr. Joseph Bodensteiner provided negligent care and treatment to Thomas Hageny. As a matter of law, he ruled the jury should not deliberate on whether the doctor should have obtained a second informed consent when post-operative complications arose.
On May 18, 2007, the jury found Bodensteiner was not negligent in his care and treatment of Hageny.
Hageny’s wife, Phyllis, filed suit against Bodensteiner in July 2005 after her husband died in a recovery room following gall bladder surgery. According to court records, Thomas Hageny signed an informed consent form prior to surgery that outlined the risks and potential complications of surgery and authorized Bodensteiner to address any complication that arose. Severe blood loss and death were some of the risks discussed.
According to court records, Hageny’s blood pressure began to drop almost immediately after surgery. The recovery room nurse administered several doses of ephedrine but it failed to raise Hageny’s blood pressure. When Bodensteiner examined Hageny, he determined Hageny’s nonresponsiveness to the ephedrine indicated either a heart problem or a bleed. Bodensteiner decided to push fluids and increase the ephedrine doses in an attempt to raise Hageny’s blood pressure. Half an hour later, Bodensteiner requested a cardiac work-up, because Hageny still was not improving.
The internist was unable to complete the work-up because blood started coming out of Hageny’s drain. Shortly thereafter, Hageny died. An autopsy revealed a clip on an artery had come off and he bled to death.
Mrs. Hageny sued alleging negligent care and failure to obtain informed consent. She did not dispute that her husband consented to the surgery but she argued the doctor should have conducted a second informed consent when her husband’s blood pressure dropped. She argued a second informed consent discussion was necessary to apprise Hageny of the existence of his options (various tests to determine the existence of bleeding or cardiac problems) as well as the risks and benefits of each option.
At trial, Nielsen declined to instruct the jury on informed consent. Nielsen concluded Hageny’s postoperative condition did not require a separate informed consent, but was “inextricably entwined with Bodensteiner’s ongoing duty to provide postoperative care for the procedure Hageny had authorized him to perform.”
Mrs. Hageny asked the court of appeals to review whether Nielsen erred in his interpretation of the state's informed consent law. The justices have upheld Nielsen’s decision.
According to the appeals court, Wisconsin’s informed consent law requires a physician to “inform the patient about the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments.” The purpose of the informed consent discussion is to provide the patient “the risks and benefits of available treatment options … a reasonable patient would need to know in order to make an informed decision” about their treatment. A physician need not disclose “absolutely every fact or remote possibility that could theoretically accompany a procedure.” Rather, the disclosure must be guided by “what the reasonable person in the position of the patient would want to know.”
A physician must initiate a new informed consent discussion when there is “a substantial change in circumstances, be it medical or legal.”
Mrs. Hageny argued her husband’s postoperative complications constituted a substantial change in medical circumstances and that Bodensteiner was therefore obligated to conduct a second informed consent discussion.
The appeals court disagreed. The justices concluded a second informed consent discussion is not necessary "unless the medical conditions change in such a way that the patient faces risks not disclosed prior to the procedure.”
In this case, the court said Hageny was informed prior to surgery that the complication that occurred was a possibility and he consented to the procedure and related treatment. The court added that it’s not relevant that the complications occurred after the surgery and outside of the operating room.
“When a patient consents to surgery, (that person) acknowledges he or she understands complications may arise, and authorizes the doctor to remedy these complications, it follows that the patient has consented to treatment of those complications whether they occur in the operating room or afterward in the recovery room,” the justices wrote.
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JohnR wrote on Dec 31, 2008 2:53 PM: