Allen v. Harrison — Apr. 2016 (Summary)

INFORMED CONSENT

Allen v. Harrison
No. 111877 (Okla. Apr. 19, 2016)

The Supreme Court of Oklahoma reversed a partial grant of summary judgment to a physician in a medical malpractice action that was based on the doctrine of informed consent. The patient at issue had come to the emergency department after having swallowed a nail.  The defendant emergency room physician recommended that the patient eat a high fiber diet and let the nail pass naturally, and did not provide the patient with any alternative treatment options. Ultimately, after experiencing serious vomiting, the patient went to a different emergency department where she had the nail surgically removed from her intestines and received treatment for a perforated and infected bowel.

The patient sued the emergency room physician, alleging failure to obtain informed consent based on the physician’s failure to disclose potential risks of allowing the nail to pass naturally, as well as the failure to disclose other options, such as surgical removal. The physician argued that he was entitled to judgment as a matter of law, claiming that a valid informed consent claim was only recognized in cases involving the performance of an affirmative treatment, not, as in this case, where he relied on his clinical judgment in not treating the patient and therefore did not affirmatively cause her injuries.  The trial court agreed, granting summary judgment.

On appeal, however, the court disagreed with the physician’s argument and reversed, finding that it falsely advanced the position that a physician must secure a patient’s informed consent only for surgical procedures, not for those that are noninvasive, and that it ignored state law that requires a physician’s communication to be measured by the patient’s ability to make an intelligent choice.  The court also rejected the physician’s argument that he should not have to disclose alternative treatments that are beyond his scope of practice – like a surgical intervention – finding that he had a duty to disclose alternative invasive interventions even to the extent that they may have required a consultation with another physician to facilitate the disclosure.