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Informed Consent Required; Non-Doctor Performing Some Surgery


A woman’s gynecologist recommended that the woman undergo a total laparoscopic hysterectomy. The woman agreed to undergo the procedure. The gynecologist scheduled the operation.

 

The gynecologist specifically requested a non-doctor to assist with the operation. At the time of the request, this non-doctor had previously assisted the gynecologist in approximately 40 to 50 procedures of which 90% were hysterectomies. The non-doctor was neither the gynecologist’s nor the hospital’s employee. The non-doctor was considered an independent contractor. The non-doctor worked completely under the supervision and guidance of the employing surgeon. The non-doctor’s credentials consisted of a degree/certificate as an emergency medical technician from the United States Army reserves; two community college degrees – certified surgical technician and licensed practical nurse; and a certification as a certified first assistant.

 

Prior to the scheduled surgery, the obstetrician executed a written consent to operate. The form expressly authorized the obstetrician and whomever the obstetrician may designate as an assistant to perform the total laparoscopic hysterectomy. The form also contained a dedicated section requiring the designation of any persons authorized to perform significant surgical tasks. That section was left blank.

 

The obstetrician conducted the laparoscopic hysterectomy. The non-doctor surgically assisted the obstetrician. The non-doctor, under the obstetrician supervision and direction, placed a port on the woman’s right abdomen. The obstetrician placed a port on the left abdomen. This allowed the laparoscopic instruments to be placed into the abdomen. During the surgery, the non-doctor cut and cauterized the right round ligament, the right utero ovarian pedicle, and the right broad ligament, and cauterized the uterine artery, while the obstetrician grasped the uterus to provide tension. Then, the obstetrician performed the same procedure on the left side while the non-doctor grasped the uterus to provide the tension. Once the uterine artery was cauterized, the procedure became a unilateral operation, with only the obstetrician operating on both sides of the uterine artery, and removing the final connections from the uterus to the bladder.

 

During the course of the procedure, the woman’s ureter was perforated. Subsequently, a second surgeon was summoned to repair the damage ureter. The woman remained under anesthesia for more than five hours as no hospital urologist was present. The woman suffered physical injuries, specifically, physical pain, impairment, limited mobility, and was required to use a catheter for a period of time. The woman underwent subsequent corrective surgeries to further repair the damaged ureter and remove scar tissue.

 

The woman sued the obstetrician and the non-doctor for medical malpractice including lack of informed consent.

 

The obstetrician and the non-doctor filed motions for summary judgment. The Oklahoma District Court granted the motions. The Oklahoma Court of Civil Appeals affirmed.

 

The Supreme Court of Oklahoma reversed. The court held that the doctrine of informed consent requires a physician to obtain the patient’s consent before using a non-doctor to perform significant portions of a surgery for which the physician was engaged to perform thereby subjecting the patient to a heightened risk of injury.

 

The doctrine of informed consent requires a physician to obtain the patient’s consent before using a non-doctor to perform significant portions of a surgery for which the physician was engaged to perform thereby subjecting the patient to a heightened risk of injury. No physician has carte blanche to delegate any or all tasks to a non-doctor. The scope of a physician’s duty to inform is broad enough to include a physician’s duty to inform the patient who will be performing significant portions of the procedure or surgical tasks. The obstetrician had a duty to disclose to the woman and obtain the woman’s consent before using a non-doctor to perform significant portions of the total laparoscopic hysterectomy. Material facts existed as to whether the undisclosed heightened risk of a perforated ureter was the proximate cause of the woman’s injury. The trial court erred in granting summary judgment in favor of the obstetrician.

 

The Supreme Court of Oklahoma reversed the trial court’s entry of summary judgment in favor of the obstetrician and non-doctor.

 

See: Hurley v. Kirk, 2017 OK 55, 2017 WL 2644858 (Okla., June 20, 2017) (not designated for publication).

 

See also Medical Law Perspectives Report: Unclean, Unsterile, Unsafe: Risks of Injury from Unsterilized Medical Equipment

 

 

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