Interplay Between Informed Consent and Failure to Diagnose Case Theories

In December of 2012, the Washington Court of Appeals issued a case containing further guidance with regard to how lack of informed consent cases interplay with medical negligence cases involving a failure to diagnose.  The case was Gomez v. Sauerwein (289 P.3d 755).

Medical negligence can take many forms, one of which is failure to diagnose.  The basis of such a theory is that medical providers have many sets of standards that must be followed in various circumstances.  The standards will dictate that certain follow-up testing, procedures, or diagnosis must necessarily follow from other results, testing, or diagnoses.  When a doctor receives Y test results, for example, and Y test results indicate that Z further test is needed, then the doctor is negligent when the standards for that particular type of doctor would dictate that Y test result necessitates Z further testing, and the doctor fails to order up Z further testing.  To illustrate, the Plaintiff in Gomez had a blood test that came back with yeast in the blood.  Yeast in the blood was known to indicate a life-threatening fungal disease; and so standards of care in that situation dictate that the Plaintiff should be contacted immediately for further testing.  The Plaintiff’s theory of medical negligence rested on the allegation that the doctor instead told the Plaintiff to follow up a few days later.

By contrast, an informed consent theory involves when a doctor makes a determination of what is ailing a person (a diagnosis), and then how the doctor deals with it.  The doctrine of informed consent simply dictates that in making the latter determination (how to deal with it), the patient is to be fully informed of all the options available and the risks associated with each, including the option and risks of non-treatment.

The issue in Gomez was whether a plaintiff can proceed with only one theory, or both.  In other words, are they mutually exclusive?  The implicit assumption underlying the question is that informed consent requires a correct diagnosis in order to even become an issue, and if the doctor does not correctly diagnose the patient’s ailment, then informed consent cannot be an issue.  Instead, the only issue is negligence under a failure to diagnose theory.  The Court of Appeals held that this “implicit assumption” is correct.

The reasoning of the opinion basically construed prior case law and came to the conclusion that the decision regarding what is the ailment or malady that a person has is the doctor’s decision.  Once a diagnosis is made, then the informed consent doctrine kicks in, and a patient must be informed.  However, before a complete diagnosis is made, the doctor does not have a duty under the informed consent doctrine.

In other words, while the informed consent doctrine means that a patient must be given the choice “we can treat disease X with either treatment A or treatment B,” it does NOT give the patient the choice to decide, “the tests indicate that you may have disease X and you may have disease Y.  Which do you want to receive treatment for?”

All of the cases interpreted by the Gomez court, however, seem to be pretty cut and dry in terms of when the doctor first made a diagnosis and then subsequently switched to making decisions about treatment.  In that way, it was easy for all of the courts in question to see the issues as mutually exclusive as a matter of law.  However, it seems at least conceivable that a certain course of treatment could give rise to both issues in one case.  For example, a doctor could fail to diagnose one condition and properly diagnose another condition.  In treating the properly diagnosed condition, he or she could fail to provide informed consent.

Such a case has apparently not been considered by appellate courts in Washington, leaving open the possibility that the two theories could co-exist in one case.

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