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LITIGATION, LEGISLATION, AND ETHICS

Informed consent and contributory negligence


Laurance Jerrold, DDS, JDa
Massapequa, NY

emember this scene from the second Indiana Jones


movie? While searching for the Holy Grail, one of
the bad guys chooses to drink from a chalice that he
believes was the one Christ drank from. He picks up a bejeweled cup, takes a sip, and promptly dies a horrible death. The
Crusader guarding the room full of treasure says, tongue in
cheek, of the dead mans action, He chose poorly. If an
orthodontist gives a patient a few viable treatment alternatives to choose from, and the patient subsequently chooses
poorly, can the doctor claim that the patient was contributorily negligent in response to the patients claim for lack of
informed consent? Brown v Dibbel, 595 NW2d 358 (Wis
1999) and Alexander v University of Pittsburgh Medical Center System, 185 F3d 141 (3d Cir 1999) are two cases that
addressed this question.
In Brown, the plaintiff had a family history of breast cancer,
was in a high-risk category, had previously undergone breast
implant surgery, and now presented with a lump in her breast.
A mammogram was inconclusive and suggestive of fibrocystic
disease. Normally a punch biopsy would be indicated, but the
implants precluded taking a needle biopsy. The defendant gave
the patient two options: have repeated mammograms every 6
months to detect any changes or undergo bilateral prophylactic
mastectomies. In Alexander, the patient had Wilsons disease, a
buildup of copper in the liver. The two options in this case were
chelation therapy until a liver transplant became a necessity or
liver transplantation as soon as possible. The surgeons informed
the plaintiff, through her parents, that the transplant would offer
a definitive cure; however, the risks were high. Three livers
were turned down. Surgery was refused because the patients
primary care physicians opined that there was no harm in
undergoing chelation therapy for the present because the
patients condition was, for now, stable.
Ms Brown opted for the surgery and suffered serious bodily disfiguration; Miss Alexander had an acute infection secondary to the chelation therapy, was too ill to undergo an
emergency transplant, and died as a result. Both plaintiffs
sued for lack of informed consent. Both defendants wanted
the respective juries to consider contributory negligence as
part of their defense because it was not their fault that, unfortunately, their patients chose poorly.

aProgram Director, Post Graduate Orthodontics, New York University College


of Dentistry.
Am J Orthod Dentofacial Orthop 2001;119:85-7
Copyright 2001 by the American Association of Orthodontists.
0889-5406/2001/$35.00 + 0 8/1/113056
doi:10.1067/mod.2001.113056

Blacks Law Dictionary defines contributory negligence


as conduct constituting a lack of ordinary care by the plaintiff
that amounts to a breach of the duty legally imposed upon persons to protect themselves from injury which, when coupled
with the negligence of the defendant, proximately causes the
injury complained of. Most states have replaced this concept
with the doctrine of comparative negligence, apportioning
degrees of negligence according to the actions of the parties
concerned. In other words, if the plaintiff is found to be 20%
to blame for his injuries because of his own negligence, then
any amount awarded would be reduced by this percentage.
The Brown decision started out with the Court noting:
[W]e conclude that as a general rule patients have
a duty to exercise ordinary care for their own health
and well-being and that contributory negligence may,
under certain circumstances be a defense to an
informed consent action. [H]owever,thepatientdoctor relation[ship] assumes trust and confidence on
the part of the patient and it would require an unusual
set of facts to render a patient guilty of contributory
negligence when the patient relies on the doctor.
According to Wis 448.30, which governs informed consent:
Any physician who treats a patient shall inform the
patient about the availability of all alternate, viable
medical modes of treatment and about the benefits and
risks of these treatments. The physicians duty to
inform the patient under this section does not require
the disclosure of:
(1) Information beyond what a reasonably well-qualified
physician in a similar medical classification would know.
(2) Detailed technical information that in all probability
would not be understood.
(3) Risks apparent or known to the patient.
(4) Extremely remote possibilities that might falsely or
detrimentally alarm the patient.
(5) Information in emergencies where failure to provide treatment would be more harmful to the patient than treatment.
(6) Information in cases where the patient is incapable of
consenting.
The Court went on to describe that the doctrine of
informed consent focuses on the reasonableness of a doctors
disclosure and that the degree of information divulged is
based on what a reasonable person in the plaintiffs position
would need to know to make an informed decision about all
viable treatment alternatives presented. The Court noted that
this information must include communicating to patients an
assessment of their condition and its gravity, the recom-

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85

86 Litigation, legislation, and ethics

mended treatment plan and the prognosis for its success, and
any alternative treatment plans or procedures, as long as they
are reasonably appropriate. During further deliberations, the
Court focused on the contributory negligence aspect of the
case, noting that patients have a duty to protect themselves
from harm. The Court noted three types of situations wherein
a patients actions could potentially constitute contributory
negligence in response to a claim for lack of informed consent.
The first issue concerned the responsibility patients have
to tell doctors the truth and provide complete and accurate
information regarding their personal, family, or health history
in response to doctors requests for this information. The
Court noted that:
A patient is usually the primary source of information
about the patients material personal, family, and medical histories. If a doctor is to provide a patient with the
information required [under the informed consent
statute] it is imperative thatfor patients to exercise
ordinary care, they must tell the truth and give complete
and accurate information about personal, family and
medical histories to a doctor to the extent possible in
response to the doctors requests for information when
the requested information is materialand that a
patients breach of that duty might, under certain circumstances, constitute contributory negligence.
In a related footnote, the Court noted that it would not
address the question of whether or not this duty required a
patient to volunteer information or to spontaneously advise
the doctor of material personal, family, or medical [information] that the patient reasonably knows should be disclosed
if the doctor does not inquire.
The second issue centered around what responsibilities
patients have in asking questions of doctors and in seeking
out information to aid them in making informed decisions.
The Court opined that no duty exists on the part of the
patient to:
...[A]scertain the truth or completeness of the
information presented by the doctor, nor does a patient
have an affirmative duty to ask questions or to independently seek information. It is illogical and contrary
to the concept of informed consent to place on patients
the burden of asking questions of their doctors or
engaging in their own independent research. It is the
doctor who possesses medical knowledge and skills
and who has the affirmative dutyboth to determine
what a reasonable patientwould want to know and to
provide that information.[A] patient is not in a position to know treatment options and risks and, if
unaided, is unable to make an informed decision.
The Court went on to note that this decision did not mean
that a patient could never be held contributorily negligent for
failing to seek information, just that the circumstances would
have to be extraordinary to require patients not to trust the

American Journal of Orthodontics and Dentofacial Orthopedics


January 2001

information provided by their doctors and require instead that


they do their own medical research independently.
The final question related to whether a patient could be contributorily negligent for choosing one viable treatment alternative over another. The Court noted that the focus of an action for
lack of informed consent is the doctors failure to disclose material information necessary to allow a patient to make an
informed choice between viable treatment alternatives. As long
as this is done, a patient cannot be found liable of choosing
poorly without extenuating and extraordinary circumstances.
In Alexander, this issue centered around whether the
childs parents could be found comparatively negligent for
choosing one treatment alternative over the other when there
was disagreement among the treating physicians. On one
hand, the Alexanders were faced with specialists who recommended the liver transplant as the best chance for survival; on
the other hand, there were generalists who favored chelation
therapya far less aggressive approach that, nonetheless,
included a significant risk of death. The jury decided that the
nonspecialists had indeed breached the standard of care in not
recommending the transplant. The judge in this case decided
that, as a matter of law, patients could not be contributorily
negligent when deciding between two viable courses of therapy. The Federal Appellate Court duly noted that there were
valid arguments to be made by both sides and remanded the
case for a new trial, a decision based on the legal principle that
issues of fact are to be decided by juries and not by trial
judges, as was done in this case. The Court noted that judges
cannot unilaterally decide that physicians can escape liability
because their patients are foolish enough to follow their bad
advice. This type of decision is for the jury to decide.
COMMENTARY
It is easy to see the application of the informed consent
statute to orthodontics. We need to tell our patients in a language they can understand what their orthodontic problem is;
what treatment we recommend to effect a cure; whether
there are any other viable treatment options; the benefits,
risks, and limitations that might be associated with these
treatment choices; what we expect the prognosis to be for
each therapeutic approach; and the consequences of no treatment. What is harder is seeing the application of contributorily negligent behavior to informed consent.
Your patient has a Class II malocclusion, and you want
to correct the problem with headgear. You explain the need
for cooperation to the patient and parent and ask if there
are any questions. Do they have an obligation to inform
you of their belief that Junior will not, for whatever reason,
cooperate with the proposed treatment plan? If adult
patients have certain business, personal, or social obligations that may compromise your proposed treatment plan,
are they under an obligation to inform you of this so that
you may adequately inform them and obtain their informed

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Volume 119, Number 1

consent? According to Brown, patients have an obligation


to tell us the truth about facts and issues that we need to
know if we are expected to formulate appropriate treatment
plans for them. The catch seems to be that we have to ask.
In other words, once you determine a diagnosis and tentative treatment plan, as part of your informed consent discussion, you need to inquire about any foreseeable problems with the patient cooperating with your therapeutic
recommendations and ministrations. Once you factor this
information into your disbursing of information and, in
return, obtain informed consent, you are protected from the
patient choosing poorly.
Looking at the second question, one can see that we have
an obligation to provide patients with sufficient information
to allow them to reach a treatment decision that is appropriate for them. The big issue here is twofold. The most obvious
is not providing sufficient information. A more subtle trap is
not adequately responding to misinformation that we know
the patient possesses. While we cannot shift the obligation to
inform to the patient, we also cannot abrogate our responsibility to address and correct misimpressions and false data
that patients are coupling with our data as they decide on a

Litigation, legislation, and ethics 87

course of action. Allowing a patient to choose poorly based


on misinformation, when we know better and have the opportunity to correct this situation, may expose us to liability.
The final issue deals with potential liability for poor
patient choices among viable treatment alternatives. Doctors
today must get past the paternalistic role of yesterday. Let
patients decide what is best for them. From a risk management perspective, document every foreseeable negative for
each therapeutic alternative. Doing this is the only way to
shift the risks of harm to accompany the burdens of choice.
In other words, patients cannot be found to be contributorily
negligent for choosing poorly unless they had valid, material, and necessary information to make the choice in the first
place. In informed consent actions, juries will apportion liability based on their perception of the degree of fault attributed to each party. You may be totally exonerated; you may
be found totally liable; or anything in between, depending on
how good a job you did regarding the quid pro quo of giving
information to obtain consent.
A major clothing entrepreneur advertises an informed
consumer is our best customer. The lesson here: Educate
your patientshelp them to choose wisely.

Information pertaining to litigation, legislation, and ethics will be reported under this section of the American
Journal of Orthodontics and Dentofacial Orthopedics. Manuscripts for publication, readers comments, and
reprint requests may be submitted to Laurance Jerrold, DDS, JD, 100 Clark Ave, Massapequa, NY 11758.