A recent Physicians Insurance case that began with a patient’s emergency care landed at the Washington State Supreme Court to address the laws around informed consent. Could the results possibly impact how physicians handle informed consent across the State of Washington?
This became the focus of a defense that brought prominent medical organizations together from around the state to advocate for the healthcare community.
More than just a medical malpractice claim
The case involved a patient who was diagnosed in the emergency room with a cervical spine fracture following an automobile rollover. After testing and treatment in the ER, the patient was discharged to the care of her family with instructions to have a follow-up visit with her primary-care provider.
During the primary-care visit the next day, the patient exhibited stroke signs and was then diagnosed with a vertebral artery dissection (VAD), which led to a stroke.
As a result of this event, two claims arose:
- A medical malpractice claim, alleging a misdiagnosis in the emergency department.
- A failure to secure informed consent claim. Here, the plaintiff argued that she was not advised in the ER about the risk of a VAD or the availability of testing that might have prevented the stroke.
A defense ruling
In accordance with the law, a physician is subject to liability for lack of informed consent if the physician fails to disclose other courses of treatment, including no treatment at all, as options upon which the patient makes the ultimate choice.
A key factor here was that the insured emergency medicine physician considered, but ruled out, the possibility of a VAD, because the patient exhibited no signs of this condition while in the physician's care. Therefore, the defense argued it would not make sense for him to have introduced treatments and risks for a condition that was no longer under consideration.
After hearing the case, the jury found that none of the healthcare provider defendants, including the emergency medicine physician, were negligent. Also, the trial court dismissed the plaintiff’s informed consent claim as unsupported by the law.
A novel strategy by the plaintiff
It was here that the case took a significant turn. The plaintiff challenged the informed consent dismissal by the trial court, and the Court of Appeals reversed, finding in favor of the plaintiff.
This left the defense team to grapple with a major question: Could they accept this outcome, which would revive the informed consent claim and possibly result in a troubling legal precedent statewide? Or should they appeal the matter to the Washington State Supreme Court?
If the plaintiff prevailed in the informed consent allegation, it would require emergency medicine physicians throughout the state to disclose tests for conditions that were ruled out, explains Kari J. Adams, Senior Vice President of Claims for Physicians Insurance. “It would expand healthcare beyond reasonable limits,” she says.
For example, a headache might be associated with a vast range of potential causes, from dehydration to a stroke. Obtaining informed consent for all of the possible conditions would overwhelm the medical system and hurt the physician’s ability to quickly diagnose and treat the most likely cause of the headache, Adams explains.
Also, the case was focused on emergency medicine, but there were concerns that the impact of this decision could extend to other providers as well.
After careful consideration—and with strong support from the medical community—a decision was made to take the case to the State Supreme Court.
How did an amicus brief help to inform the court?
For the Physicians Insurance team, a central part of preparation involved coordinating with professional organizations in the Washington medical community, who filed an amicus brief in support of the defense. This type of brief is filed by neutral parties, or “friends of the court,” to lend their expertise and present relevant additional information to the court for consideration.
The participating parties included the Washington State Medical Association, Washington Chapter-American College of Emergency Surgeons, Washington State Hospital Association, and the American Medical Association. In their amicus brief, they showed the court the potential ramifications of setting a new informed consent precedent in this case, and the detrimental effect this could have.
“The plaintiffs did not present an amicus brief,” Adams says. “That was telling to us that they likely didn’t believe in the strength of their own argument.”
After a lengthy and involved legal process, and with the critical support of the participants in the amicus brief, the Physicians Insurance team prevailed. “It was a unanimous decision by the Washington State Supreme Court, which is rather unusual,” says Adams. Looking forward, the decision will deter any future lawsuits from claiming lack of informed consent in this context.
What fell out of focus in this case is that the patient was seen by a very well-qualified emergency medicine physician, who conducted a number of tests and also consulted with the co-defendant neurosurgeon. “The right clinical decision was made,” says Adams. “The unfortunate reality is that even with really good care, litigation can arise.”
Although these types of legal challenges are not common, this case showed the positive results that can be achieved when people band together through an amicus brief. Physicians Insurance remains committed to using all available resources to advocate not just for insured members, but for the healthcare community as a whole. They are steadfast in their mission to protect, defend and support their members.