A cause of action based on a lack of informed consent has three elements:
- breach of the duty to inform (non-disclosure)
In this case, it was clear that Dr. B breached his duty to inform his patient that the patient did not, in fact, have cancer. The causation element turns on whether the plaintiff would have agreed to the proposed treatment had he been adequately informed. The injury element would include pain and suffering, unnecessary lab tests, and unnecessary treatment.
Given the facts of this case, it is likely that the jury would have sided with the plaintiff and agreed that he would not have consented to unnecessary follow-up treatment for cancer that he did not have.
Dr B. was not being sued for performing the prostatectomy in the first place. Given the information he had at the time, including the PSA test and biopsy result, the decision to perform the surgery was sound. Where Dr. B went wrong was post-surgery, when he concealed information from the patient in a misguided attempt to spare the patient distress.
Dr. B was actually attempting to spare himself the distress of having to break bad – possibly devastating – news to a patient that his prostate had been unnecessarily removed. He probably anticipated a lawsuit if he revealed this information to the patient. However, Dr. B had an ethical responsibility, as well as a legal one, to give his patient the full facts of his situation, rather than mislead him and continue treating him as though he had cancer.
The truth is not always easy. Undoubtedly, the patient would have been angry and upset. However, Dr. B would have protected himself by being honest, and he would have spared the patient five years of unnecessary testing. The old adage is true – honesty is the best policy, and the one most likely to protect you from a lawsuit.