Informed Consent – Lugenbuhl V Dowling

Elements of the legal citation

This was a case in which a patient, Milton C. Lugenbuhl, took action against Dr. James Dowling for damages apparently caused by the doctor not using a surgical mesh in the repair of an incisional hernia as requested by the patient.  It was case number 96-C-1575 at the Supreme Court of Louisiana and was decided on October 10, 1997 (FindLaw, undated).

The principal issues included whether following the patient’s expressed desire for a mesh to be used in the surgical operation, the doctor informed the patient of the nature of the procedure and the consequent risks with and without the use of the mesh. The court also needed to decide whether there was a causal connection between a lack of informed consent or the doctor not using the mesh and the damages awarded for additional surgery as proved by the patient. The court found the doctor liable for the former but not the latter.

Informed consent

Initially, consent was based on the reasoning that a competent person has the right to decide about his or her body. This reasoning can be traced to 1914 when Justice Cardozo stated that “Every human being of adult years and sound mind has a right to determine what shall be done with his own body and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.” (FindLaw, undated). This concept of consent was later developed so that doctors were required to disclose information to the patient so that the patient can make informed decision about medical procedures.

Following significant litigation regarding doctor’s scope to provide informed consent, the Louisiana Legislature enacted subsections A-C to the informed consent law in 1975-6. The sections provide that written medical consent to surgical procedures sets forth the nature and purpose of the procedures with the known risks, acknowledges disclosure of such information and satisfactorily answering of all questions and signing of the written informed consent by the patient or a person with legal authority to represent the patient. In case of surgical implantation of Norplant contraceptive devices, the doctor shall explain to the patient the risks, known adverse results and alternative methods. Further, except as provided above, evidence to modify or limit the authorization for procedure performance as stated in the written consent is not admissible. For consent secured other than in accordance with the conditions stated above, the explanation to the patient or legal authority shall include the matters set forth above with an opportunity afforded to ask questions and answered satisfactorily. Such consent is then valid and effective (FindLaw, undated).

Informed consent ensures that a patient is aware of the nature and purpose of a procedure and the attendant risks so as to grant or deny assent to the procedure (Andrews, 2012). It gives the patient control of what is to be done to their body on the basis of available information and consequent questioning.

Informed consent is a contract between the patient and the doctor, with the patient expecting the doctor to use all their skills, knowledge and experience to bring relief to a medical problem. The contract has the elements of a tort with the doctor owing certain duties to the patient, a breach of which could cause action against the doctor. Hence, informed consent is important in attributing liability in situations where procedures go wrong (Koch, 2015). Such liability establishes which party is to be held accountable in case of a tort.

Further, informed consent is also important in curbing medical malpractices and negligence (Meisel, 1977). It ensures that the doctor performs to the best of their ability and in the interests of the patient at all times. An informed consent hence ensures the doctor or physician adheres to the appropriate standard of care and has no intention to harm the patient.

If the informed consent doctrine did not exist, doctors would have the prerogative over patient’s surgical procedures. They would have liberty and prerogative to carry out medical experiment and research during therapy. In case a medical procedure went wrong, there would be no liability and neither would damages be paid to the injured party.

Elements for informed consent

Informed consent is dependent on the existence and nature of a risk and the likelihood of its occurrence. This element of informed consent is determined by the testimony of a qualified expert e.g. a doctor since only they can judge what risk exists and its occurrence likelihood.

The harm caused must be a risk that a reasonable patient would have to consider in deciding the form of treatment. Hence, a reasonable person in the patient’s position would attach significance to the risk to require informed consent. Expert testimony is not a requirement for determination of this materiality (Andrews, 2012).

Battery, Unconsented Touching or Breach of Duty as Negligence

Battery can be viewed as a medical accident caused by negligence on the part of the doctor since accepted standards of practice do not include battery. Moreover, a doctor with the requisite skills and knowledge would normally not cause battery during a medical procedure. Hence, battery during therapy is a medical accident with the physician being held accountable (Meisel, 1977).

Treatment is a right for any patient, imposed on physicians. This further becomes a contract with the signing of informed consent prior to which the doctor is supposed to disclose material information about a major treatment, surgical operation and invasive investigation. Failure to disclose this information is hence a breach of duty that makes the doctor liable for the tort because of negligence (Koch, 2015). Invasive investigation will require extensive touching of the patient by the doctor. Such touching usually requires informed consent. Hence, unconsented touching would be viewed as negligence with the physician being liable.

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