Scott v. Bradford

Supreme Court of Oklahoma · 1979 · Torts

Tortsinformed consentmedical malpracticeduty to disclosereasonable patient standardmaterial riskduty to disclosealternatives to treatment

Facts

Mrs. Scott's physician discovered several fibroid tumors on her uterus and referred her to defendant surgeon. At the hospital she signed a routine consent form before defendant performed a hysterectomy. After surgery she developed incontinence, and later physicians discovered a vesico-vaginal fistula that ultimately required three surgeries to correct. Plaintiffs alleged defendant failed to advise her of the risks of the hysterectomy and available alternatives, and claimed she would have refused the surgery if properly informed.

Issue

Does Oklahoma recognize a negligence cause of action based on lack of informed consent, and if so, what disclosure and causation standards govern that claim? Also, were the instructions given here sufficient to present the law applicable to that issue?

Rule

Oklahoma recognizes informed consent as a negligence-based medical malpractice claim. A physician must disclose material risks of proposed treatment, available alternatives, and their material risks, measured by the patient's need to know enough to make an intelligent choice rather than by professional custom. A risk is material if it would be likely to affect the patient's decision. To recover, the patient must prove: (1) inadequate disclosure of a material risk before consent, (2) that if informed the patient would not have consented to the treatment, and (3) the undisclosed risk occurred and caused injury. The physician bears the burden of proving any privilege not to disclose, such as patient knowledge, detriment to the patient's best interests, or emergency.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Tulsa, Dr. Evan Mercer recommended an elective shoulder operation for Lena Ortiz. He followed the usual practice of surgeons in his area by describing the procedure as standard and did not mention a small but significant risk of permanent loss of grip strength because most local surgeons did not discuss it. Lena suffered that complication and says she would have declined surgery if told.

Which is the strongest argument supporting Lena's informed-consent claim?

Explanation. The majority adopted a patient-centered disclosure rule and rejected the professional-custom standard. A physician must disclose material risks—those likely to affect the patient's decision—based on the patient's need to know enough to make an intelligent choice. Proof that local physicians also remain silent does not defeat the claim.