Alaska case, reform bill sparks debate over informed consent standards

May 1, 2004

If a patient called you in the middle of the night complaining of abdominal pain and bloating and the inability to burp, what advice would you offer? One Alaska surgeon advised his patient to go to the emergency room, but she did not comply. Later, the patient went into shock due to intestinal blockage. She suffered brain damage and partial paralysis and sued.

The patient claimed that the surgeon did not provide enough information for her to make an informed choice. Specifically, she claimed that the surgeon did not inform her of the consequences of not going to the ER.

A jury found for the surgeon, but the Alaska Supreme Court has sent the case back to trial. The state's high court decided the case should not have been decided based on informed consent standards, but rather from the perspective of a "reasonable person," reported American Medical News (3/22-29/04). A re-trial was scheduled to begin in April.

The case has inspired legislation that would create an informed consent standard—thereby, eliminating the "reasonable patient" standard. Lawmakers are considering the bill, which would also provide immunity from liability to a physician who advises a patient via the phone or other electronic means to get further care or evaluation at a hospital or other facility, but the patient chooses not to comply. In addition, the bill would put a $250,000 cap on non-economic damage awards in medical malpractice suits.