News & Resources

The Oklahoma Supreme Court recently issued a new opinion on the doctrine of informed consent in medical negligence cases.  See Allen v. Harrison, 2016 OK 44, 2016 WL 1567600 (mandate not yet issued at the time of this publication).  In that case, the plaintiff swallowed a nail, and the ER physician recommended that he “eat fiber and let the nail pass”; the physician allegedly failed to disclose the alternative medical options, which would have included endoscopic and surgical removal of the ingested nail.   The underlying medical negligence claim was tried to a jury, and a defense verdict was rendered by the jury.

However, the plaintiff appealed the trial court’s pre-trial partial summary judgment ruling on the informed consent claim.  The Supreme Court agreed that summary judgment was inappropriate on the informed consent claim, and remanded for a new trial.  In particular, the Court rejected the ER physician’s argument that he had no duty to advise of medical options that were outside the scope of his practice.  Id. at ¶13 (“[P]hysicians do not adequately discharge their obligations by limiting their disclosures to the treatments they recommend or treatments within their scope of practice.”).  Rather, the Court implied that the ER physician had a duty to make this disclosure even if it meant a “consultation with another medical professional to facilitate the disclosure.”

The case contains a number of holdings regarding informed consent.  The conclusion summarizes the holding:  “[I]nformed consent applies equally to invasive as well as noninvasive medical treatments and treatment alternatives regardless of a physician’s scope of practice. To effectively discharge a physician’s duty to disclose, a physician must disclose the medically reasonable alternatives regardless of whether it is the physician’s preferred method of treatment.  The ultimate decision of what treatment a patient receives rests with the patient, not the physician.”  Id. at ¶ 20.

The Court focused on the patient’s right to make decisions about their own bodies, and rejected as “medical paternalism” any argument that the physician should be given discretion to decide what information is provided to the patient.  “[A] physician’s duty of disclosure must be measured by his patient’s need to know enough information to enable the patient to make an intelligent choice.”  Id. at ¶17 (emphasis added).