HA550 Unit 3 Surgeon Experience Consent Scenario Example

Six Cases Before Hers: An Informed Consent Scenario Asking Whether a Composite Surgeon's Limited Experience With Robotic-Assisted Hysterectomy Was Information the Law Required the Patient to Receive, Tested Under Both Disclosure Standards

[Student Name]

Purdue University Global

HA550: Health Care Law and Ethics

Unit 3 Informed Consent Scenario

[Instructor Name]

[Date]

The patient, surgeon and hospital are composite and bracketed for the writer's own data; the cases cited are real, and the analysis is coursework, not legal advice.

The Question

Was the surgeon's limited experience with this procedure material information that had to be disclosed? This scenario sets aside whether the operation was performed negligently, which is a separate claim.

Facts

The consent form listed general risks, including injury to nearby organs such as the bowel and bladder, conversion to open surgery and bleeding. The pre-operative note records a discussion of the procedure's benefits and risks, and of alternatives, including abdominal hysterectomy. It says nothing about the surgeon's experience. The patient later said she had chosen the hospital because its website described its robotic program as "among the region's most experienced."

The Rule

The principle that every adult of sound mind may decide what is done to their own body traces to a 1914 New York decision (Schloendorff v. Society of New York Hospital, 1914). Informed consent turns that principle into a duty to disclose. States use one of two standards. The professional standard measures disclosure against the customs of the physician's own specialty, shown through expert testimony. The reasonable patient standard, set out in Canterbury v. Spence (1972), asks instead what information someone standing where the patient stood would find significant when deciding. States divide roughly evenly between the two. A claim also requires causation: that a reasonable patient, properly informed, would have chosen differently, and that the undisclosed risk caused the injury.

Application Under the Reasonable Patient Standard

Would a reasonable patient consider her surgeon's experience material? There is a strong argument that she would. Studies of surgical outcomes find that surgeon volume is linked to lower complication and death rates for many procedures (Birkmeyer et al., 2003). In Johnson v. Kokemoor (1996), the Wisconsin Supreme Court held that evidence of a surgeon's limited experience with a difficult procedure, and of the higher risk when less experienced surgeons perform it, was admissible because a reasonable person would want to know it. Here, the patient chose the hospital partly for its claimed experience, which makes the information even more plainly material to her decision. The patient picked the hospital for its experience and was never told that her surgeon had little. Causation: she must show that, informed, she would have chosen a more experienced surgeon or a different procedure, and that a reasonable patient would have done the same. Given her stated reason for choosing the hospital, that is plausible.

Application Under the Professional Standard

Here the answer depends on expert testimony about what surgeons customarily disclose. Many surgeons do not routinely volunteer their case numbers, so an expert might testify that the disclosure met the standard. The claim is weaker under this standard, unless the patient asked directly and was misled.

Who Owns the Consent Process

Consent is usually treated as the physician's duty, and most courts hold the physician, not the hospital, responsible for the content of the disclosure. But hospitals own the forms, the policies on who obtains consent and the training of staff who witness signatures. When a hospital promotes a service, it also shapes what patients expect to hear. A hospital that requires consent conversations to cover certain topics, and audits whether they happen, reduces both patient harm and its own exposure. Here, the hospital's form listed risks but had no line for the surgeon's experience with a new technology, and nobody checked whether the conversation covered it.

Defenses the Surgeon May Raise

The surgeon may argue that experience is not a risk of the procedure but a fact about the surgeon, that disclosure of numbers can mislead patients because volume is only one factor, and that the bowel injury is a known complication that occurs even in experienced hands. Courts in reasonable patient states have not always accepted the first argument, as Johnson v. Kokemoor (1996) shows.

The Website Problem

Separately from the consent claim, the hospital's description of its program as highly experienced could support a claim of misrepresentation if it was misleading. That is a risk for the hospital, not just the surgeon.

Consequences for the Hospital

Under the reasonable patient standard, the hospital faces a serious consent claim, and the website increases its exposure. Under the professional standard, the claim is uncertain.

What the Hospital Should Change

1. Add a line to the consent conversation for new technology or new procedures: how many the surgeon has performed and who will assist.

2. Require proctoring for a surgeon's first [20] robotic cases and disclose proctoring to patients.

3. Review marketing claims with the medical staff office before publication.

4. Document the experience conversation in the pre-operative note.

Conclusion

In a reasonable patient state, surgeon experience was very likely material, especially for a patient who chose the hospital for experience. The safer course everywhere is to disclose it.

References

Birkmeyer, J. D., Stukel, T. A., Siewers, A. E., Goodney, P. P., Wennberg, D. E., & Lucas, F. L. (2003). Surgeon volume and operative mortality in the United States. New England Journal of Medicine, 349(22), 2117-2127. https://doi.org/10.1056/NEJMsa035205

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972).

Johnson v. Kokemoor, 199 Wis. 2d 615, 545 N.W.2d 495 (1996).

Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914).