Duodenal Switch: Bariatric Surgeons' Ethical and Legal Obligations

So often, we DSers hear from (often regretful) post-ops of other surgeries who didn't even know about the procedure when they had their surgery, or who had been given untruthful and derogatory information about it.

While there has been an ethical obligation for a long time that doctors provide accurate information to their patients about all relevant treatment options, including ones that they are not competent or qualified to perform, recent court decisions may impose a futher legal liability on doctors for failing to do so -- even when there is no medical negligence.  The lack of informed consent alone is now clearly a cause of action.

http://www.ama-assn.org/amednews/2009/08/24/prl20824.htm

Two state courts, same ruling: Informed consent must include all options

Separate high court rulings in Maryland and Wisconsin may impose greater liability risks on physicians who fail to tell patients about treatment options.

Doctors must inform patients of all relevant treatment alternatives and the risks, according to unanimous decisions issued separately July 24 by the Maryland Court of Appeals and the Wisconsin Supreme Court. The two courts also clarified that proof of medical negligence is not required for plaintiffs to bring an informed-consent claim.

"The gravamen of an informed consent claim ... is a health care provider's duty to communicate information to enable a patient to make an intelligent and informed choice," the Maryland court said. "The law does not allow a physician to substitute his judgment for that of the patient," judges said, citing a court precedent.
....
Maryland medical liability defense attorney J. Mark Coulson said the ruling there gives plaintiffs another avenue for recovery even when a doctor has met the standard of care.
...
Plaintiff lawyers, on the other hand, view the decisions as a reaffirmation of doctors' existing obligations to continuously involve patients in medical decision-making.

"Why should a doctor decide whether a patient gets a particular therapy, or surgery or nothing?" asked Henry E. Dugan Jr., a plaintiff attorney in the Maryland case. "Any one of those may be acceptable to the medical profession, but not necessarily to the individual patient. So why shouldn't the patient have a say?"
...
Juries in both cases found no deficiencies in the doctors' care. The physicians argued that because they adequately informed the patients of the diagnosis and proposed treatment, they should not be held liable.

The Maryland and Wisconsin high courts found that the other treatment options were equally valid under the standard of care and that juries could conclude physicians should have disclosed them to their patients. The courts said informed consent claims depended not on the doctors' actions, but on a patient's right to know.

"These are two separate responsibilities," said Lynn R. Laufenberg, past president of the Wisconsin Assn. for Justice. The trial lawyers organization filed a friend-of-the-court brief in the Wisconsin case.

The Wisconsin Supreme Court reaffirmed that state law requires doctors to tell patients about "all alternate, viable medical modes of treatment, including diagnosis, as well as the benefits and risks of such treatments."

Maryland judges similarly found that doctors could be liable for withholding or failing to provide information relevant to deciding a particular course of treatment. In a rare move, the court concluded that a precedent was interpreted incorrectly as limiting informed consent claims to cases in which a patient underwent a medical procedure and the doctor failed to inform the patient of the risks of that treatment.

~~~~~
Hmm, maybe I should move my legal career in a different direction?  I would derive a great deal of pleasure in suing the Lapband and RNY mill surgeons who provide no information or incorrect and derogatory information about the DS.

Based on this, it would appear to me that someone who got a band or RNY and then had to be revised to a DS (and was never told about the DS originally) would have a case.  Seems a prominent DS surgeon who is able to provide accurate information about the DS and in what ways it is superior would be the icing on the cake for the jurors.  Perhaps revisions could get their 2nd surgeries paid for (along with some additional damages)? 

Actually, the court rulings go FURTHER than that -- the lack of informed consent ITSELF (absent proof of harm) is a cause of action.

Ka-CHING??

I bet Dr. Hess would have a grand old time providing expert testimony for such cases .

Wahhhh.... you just dissed my choice of WLS, keep trying to push the DS, you brag about how unhealthy you eat, you to top it all off, you fart.

       I'm sure I have missed some of what is to come along any minute now.



If you decide to go after the unethical SOBs, let me know. You should also include these surgeons that are lying about the VSG, because they are coming on fast & furious.

I am so SICK of people saying how their "brilliant, world-class, COE, president of whatever" surgeon told them this & that about the DS, and so it is of course the TRUTH!  I am so sick of people being treated like what that inferior surgeon can offer is "good enough"... because, you know, we are fat and should be happy to just be less so.  And, I am so sick of people being led to believe that the insurance battle can't be won, isn't worth fighting, etc... just because that bariatric surgical mill wants the quick buck and doesn't give a **** about someone's life -- as in a very long time, not just the results at 2, 3, 4 years out.

Hi Kimberley,  you mentioned surgeons that are lying about VSG, could you tell me more about what you mean.  I read the stats on VSG and I know that there are no long lerm studies with the smaller sleeve.  Is there some other information that I am missing?  I am a lightweight and only had about 80 lbs to lose in all.  The stats seemed better for people in my catagory.  My surgeon did give me a written form that explained all four surgeries in detail but I am sure there are many surgons that don't do this and I am glad that the law will punish them.  I think informed consent is critical and that includes knowing all your options.  I am not asking this to be flamed, but am asking if you have some information I missed. 

If restriction is truly all you need, the VSG is absolutely the way to go - no doubt about it!  The question I have is are you really sure that's all you need?  Any idea how bad you're metabolism is messed up - how does your body react to a 'diet', in other words?  The other thing is, I do believe your doc DOES the DS - but I'm not sure (and this is a question not an insinuation) what the information he gives you really says.  Some docs are somewhat guilty of dispensing inaccurate information WITHOUT ill intent . . . . they don't live it, so they really don't have the truth.

You are right, my doctor does do all four procedures.  Although I believe he is an expert in the VSG and I don't think I would have chosen him if I wanted the DS.  As far as metabolism is conserned, well it's hard to tell.  I have always been able to lose weight rather easily, as a matter of fact, I have lost the same 80 lbs. probably 3 times.  The problem of course is that I can never keep the weight off.  I am hopeful that the VSG will help me with that.  Only time will tell.

Truthfully, I've lost 100 lbs a couple of times.  I can't keep it off without STAYING on a diet all the time.  So, the metabolic changes and the continued benefit of malabsorption made the DS perfect for me.  I'm really hoping the day will come when my daughter gets into a position to feel comfortable with gettting it for herself (she has 3 small children, and right now fear is stronger than taking action).