By Sara E. Sweeney
A patient’s consent to a proposed course of treatment is valid under Rhode Island law only when a physician discusses what is to be done, the risks associated with the proposed treatment, along with alternative treatments, and the option of no treatment when appropriate.
In the seminal Rhode Island case on informed consent, the Rhode Island Supreme Court established a five-part test a plaintiff must satisfy to successfully assert a claim for lack of informed consent. Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972).
The five elements of the test are: (1) the physician’s disclosure to the patient regarding a particular risk was unreasonably inadequate; (2) the undisclosed risk was a known material risk; (3) the undisclosed known material risk did in fact occur; (4) the patient would not have undergone the procedure if advised of that risk; and (5) the specific injury or harm of which the patient complains was the proximate result of the occurrence of that risk.
While these elements may appear straightforward, many questions arise, such as what constitutes an “unreasonably inadequate” communication, and what is a “material risk?”
Attorneys often consider whether a judge can resolve these questions as a matter of law on a motion for summary judgment, or, alternatively, if a jury has to decide these issues.
In Lauro v. Knowles, 739 A.2d 1183, 1186 (R.I. 1999), the Rhode Island Supreme Court attempted to resolve some of the inherent ambiguity, stating that if “reasonable minds could come to different conclusions regarding such risks, the issue is submitted to a jury to decide whether a physician disclosed enough information to enable the patient to make an intelligent choice concerning a proposed medical procedure.”
The Court in the seminal Wilkinson case had previously defined “materiality” as “the significance a reasonable person, in what the physician knows or should know is his patient’s position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment.”
Barton Gilman recently grappled with these issues as part of its defense of a medical practitioner. The plaintiff patient filed a motion for summary judgment on the issue of informed consent, arguing that the defendant physician failed to provide any explanation regarding the risks associated with treatment and he was entitled to a judgment as a matter of law.
The plaintiff also contended that he sustained an injury that he would have otherwise avoided if he had been warned of the risks associated with the proposed treatment.
Barton Gilman opposed the motion, arguing that the plaintiff’s signature on a valid informed consent document created a genuine issue of material fact for a jury to resolve as to the adequacy of the information provided by the physician.
Interestingly, even with a signed informed consent form, the trial court judge scrutinized the validity of the consent. The judge questioned whether the physician discussed with the patient all of the material risks associated with the proposed treatment.
In the end, the judge decided that a jury should determine the adequacy of the consent. The court’s inquiry, however, underscores the importance of using a consent form that carefully tracks Rhode Island’s consent requirements described above.
Sara Sweeney is a former Rhode Island Supreme Court Clerk and an experienced medical defense attorney who represents medical professionals in Rhode Island and Massachusetts.