Court: Alaska Supreme Court; September 3, 1993; Alaska; State Supreme Court
Julie Korman appeals a summary judgment favoring Dr. Robert Mallin in an informed consent case related to her elective breast reduction surgery. Korman argues that Dr. Mallin did not adequately disclose the risks, particularly the potential for painful and unsightly scarring, prior to her consent. The Supreme Court of Alaska addresses the required scope of disclosure under the informed consent doctrine, determining that a physician must inform patients of risks and benefits that a reasonable patient would need to know for an informed decision.
In April 1988, Korman consulted Dr. Mallin and was shown videos about the surgery, followed by a brief discussion of risks, including infection and scarring, which Dr. Mallin documented. During her May 4 visit, Korman expressed concerns about scarring; Dr. Mallin reassured her, stating he had performed many procedures successfully, but Korman later claimed he did not mention the possibility of severe scarring or that her smoking increased her risk of scarring by 50%. Despite Korman acknowledging that she read a consent form stating her risk was heightened due to smoking, she contended that Dr. Mallin failed to explain the severity of potential scarring. A medical assistant present during the discussions supported that Korman's questions were answered and that she indicated understanding before consenting to surgery. The court finds that the trial court erred in granting summary judgment and remands for further proceedings.
Wendy Brown, an employee of Dr. Mallin, confirmed in her affidavit that Korman was satisfied with the responses to her questions about surgery and understood that no guarantees regarding the outcome were provided. Following her surgery, Korman was dissatisfied with the results due to significant scarring and subsequently filed a malpractice lawsuit against Dr. Mallin in April 1990, citing medical negligence and lack of informed consent. An Expert Advisory Board reviewed her claim under AS 09.55.536 and concluded in January 1991 that Dr. Mallin's care did not cause Korman any injury, though the informed consent issue was not addressed. Dr. Mallin then sought summary judgment in May 1991, which was opposed by Korman. Judge Hunt granted the motion, stating that reasonable minds would agree Korman had given informed consent as she was informed about the risks of scarring. Korman appealed this decision.
The discussion section delineates the standard of review for summary judgment, emphasizing that genuine issues of material fact must be determined, with inferences drawn in favor of the nonmoving party. It also explains the doctrine of informed consent as per Alaska Statute 09.55.556(a), which states that a physician is liable if they fail to inform a patient of common risks and reasonable alternatives, and if this failure affected the patient's decision to consent. The statute lacks a defined standard for disclosure, leading to the necessity of determining the professional standard in the field. Traditionally, expert testimony is required to establish this standard unless the deviation is common knowledge. The modern trend, however, leans towards a patient-centered approach, focusing on what a reasonable patient would need to know.
The Louisiana Supreme Court established that the informed consent doctrine enables adults of sound mind to make decisions regarding their own bodies. Physicians must provide patients with adequate information to facilitate informed decisions about proposed treatments, including details about the condition, treatment nature, associated risks, success prospects, and consequences of not undergoing treatment or alternative methods. Expert testimony is not essential for a plaintiff's case regarding disclosure standards; instead, the scope of required information is evaluated from the patient's perspective. The physician-patient relationship is characterized by trust, with the physician obligated to fully inform the patient about treatment options. Under the reasonable patient standard, physicians must disclose risks that a reasonable patient would find material to their decision-making. Materiality involves a two-step process: first, defining the risk and its likelihood—requiring some expert input—and second, assessing whether a reasonable patient would find that risk significant, which does not necessitate expert testimony. Importantly, physicians may have a qualified privilege to withhold information for therapeutic reasons, especially when disclosure could harm the patient’s physical or psychological well-being, or if the patient is unable to consent due to mental incapacity or youth, or has requested not to be informed.
The physician's duty to disclose risks to patients is suspended in emergencies where obtaining consent is impractical, and disclosure is not required if the patient is already aware of the risk or if it is obvious. Additionally, the physician is not obligated to discuss low-incidence risks associated with common procedures. If a physician is unaware of a risk that could not have been reasonably known, there is no duty to disclose it.
In evaluating Dr. Mallin's disclosure to Korman regarding breast reduction surgery, the trial court found that he adequately informed her of the risk of scarring, citing office notes, provided materials, and signed consent forms that referenced scarring. However, merely identifying a risk does not ensure informed patient decision-making. For summary judgment to be appropriate, the physician must explain risks in lay terms, detailing their nature, severity, and likelihood.
On appeal, it was determined that Dr. Mallin’s disclosures did not meet this standard. Korman claimed she sought more information about scarring during her second consultation, to which Dr. Mallin responded reassuringly, indicating a lack of adequate disclosure. Several court rulings suggest that a patient's request for further information can indicate a need for more detailed disclosure by the physician, especially if the patient places particular significance on certain risks.
A physician has a duty to fully respond to a patient’s questions about treatment options. In this case, Korman acknowledged reading a consent form indicating her risks were heightened by 50% due to smoking. However, this percentage lacks context without a baseline risk figure for the average patient. The record fails to show that Dr. Mallin communicated the probability of painful and unsightly scarring specific to Korman or explained how smoking increased that risk. This contrasts with the precedent set in Barner v. Gorman, where a surgeon did not disclose the heightened risk of severe scarring for a patient with specific skin characteristics. The significance of "unsightly and painful" scarring is particularly important for anyone considering elective cosmetic surgery. While Dr. Mallin provided substantial information about the procedure and its risks, it is determined that he did not fulfill his duty of disclosure legally. The adequacy of his explanation concerning scarring risks presents a factual question that should be resolved by a jury. The court concludes that physicians must provide reasonable explanations of material risks to enable informed patient decisions. The prior summary judgment in favor of Dr. Mallin is reversed and the case is remanded for jury consideration.
The first videotape, "Realistic Expectations," outlines the risks and benefits of plastic surgery, while the second, "Reduction Mammaplasty," specifically addresses breast reduction procedures. Both emphasize that plastic surgery results in permanent and individualized scarring. The accompanying pamphlet states that, despite a surgeon's efforts to minimize visibility, scars from reduction mammaplasty are extensive and permanent. Patients must accept the transition from large, uncomfortable breasts to smaller, comfortable ones with scars, which remain highly visible for a year before fading. Diagrams in the pamphlet illustrate incision locations and scars.
In relation to medical negligence claims, AS 09.55.540(a)(1) requires patients to demonstrate the professional standard of care within the relevant medical field. Prior to AS 09.55.556, the court in Poulin v. Zartman addressed the complexities of informed consent but did not establish clear guidelines, resulting in a failure to prove informed consent due to the lack of evidence that the patient would have declined the procedure had they known about alternatives.
Furthermore, it is critical for physicians to provide meaningful context regarding risk disclosures. For instance, a risk increase of 50% is meaningless without stating the baseline risk. The example illustrates that if nonsmokers have a 2% risk of scarring, smokers have a 3% risk, but if nonsmokers have a 20% risk, smokers face a 30% risk, highlighting the importance of contextualizing risk information accurately. Physicians must disclose all material risks and their likelihood in understandable terms.
