Legal Review & Commentary

A lack of consent and facial burns lead to a $376,000 verdict in Texas

Jan J. Gorrie, Esq., and Blake J. Delaney, Summer Associate
Buchanan, Ingersoll Professional Corp., Tampa, FL

News: After an initial round of laser surgery on her face, the patient consented to a second procedure, which was limited to an eyelid tuck and minor laser surgery to her chin. Despite the limitation, the ophthalmologist performed a full-face laser procedure, inadvertently resulting in second- and third-degree burns. A Texas jury returned a verdict of $376,000, finding the doctor liable for negligence, medical battery, and fraud. The jury’s award included $250,000 in exemplary damages, although the trial court reduced that amount to $200,000 in order to comply with the jurisdiction’s statutory cap on such damages.

Background: On May 30, the patient met with an ophthalmologist who suggested that she undergo an eyelid tuck as well as erbium laser procedure to remove facial pigmentation. Although both procedures were scheduled for June 10, only the erbium laser surgery was performed that day.

The patient already was anaesthetized when the ophthalmologist realized the consent form referenced only the erbium laser procedure and not the eyelid tuck. The ophthalmologist believed it was a clerical error, but decided to perform only the consented-to procedure.

The patient followed up with ophthalmologist seven days after the surgery. She had broken capillaries and oozing sores. Even though she was told she could expect a four-month healing period, she agreed to an eyelid tuck and additional erbium laser surgery to touch up a small scar on her chin. The patient signed a consent form to that effect and the surgery was scheduled for one week later, on June 24.

Both the ophthalmologist and his nurse testified that, on the morning of the surgery, the patient verbally requested another full-face erbium laser procedure. The doctor claimed the patient made the request even though she had not recovered from the first procedure or consented to this extra procedure in writing.

Nevertheless, the ophthalmologist performed the full-face laser procedure in addition to the eyelid tuck and chin touch-up. He claimed that the lack of written consent was merely a clerical error.

The patient, however, denied that she requested the second full-face procedure and argued that she expected only the procedures to which she had given her expressed, written consent. She testified that when she spoke with the ophthalmologist on the morning of surgery, he stated he would do the eyelid tuck but would not perform a second full-face erbium laser procedure.

The second surgery caused severe scarring on the patient’s face, equivalent to second- and third-degree burns. The patient and her husband brought claims of battery, fraud, negligence, and negligent misrepresentation against the ophthalmologist and his laser institute.

The jury found that the ophthalmologist’s negligence proximately caused the patient’s injuries, that he performed the full-face resurfacing without the patient’s consent, and that he committed fraud against the patient.

The jury awarded $126,000 for the damages caused by the doctor’s negligence and battery on the patient and $500 for damages caused by the physician’s fraud. In addition, the jury determined there was clear and convincing evidence of fraud and awarded $250,000 in exemplary damages. Because of a statutory cap, the trial court reduced the exemplary damages to $200,000.

What this means to you: This case brings into play a couple of risk management concepts: Obviously, the first is informed consent and the policies and procedures that it entails. The second related concept is the inconsistency in how the physician dealt with the lack of specific informed consent in performing the two procedures.

Physicians who perform procedures such as laser surgery and minor surgery in their offices should adopt and adhere to policies and procedures akin to those more commonly found in outpatient and inpatient settings dedicated to such services.

"The physician obviously used some kind of form to memorialize the patient’s informed consent to procedures; however, adherence to what was on the form seems to be lacking — or at least it was with regard to this particular patient," notes Reba Crutcher Qualls, RN, LHCRM, CLNC, of Risk & Quality Solutions in Nokomis, FL.

For the first surgery, the informed consent was not complete and only the procedure consented to was performed by the doctor. However, in the second visit, the doctor ignored the consent form and performed a procedure for which he lacked written consent.

"On a positive note, it does seem that the consent form was reviewed prior to initiating the actual procedure in both instances, and so there may have been a policy (or at least habit of) regarding the review of the consent form at that juncture," says Crutcher Qualls. "However, in the second instance, despite the review of the written consent form, the lack of consent did not result in the procedure not being performed.

"The physician clearly demonstrated two different standards of care by first correctly respecting the written consent and performing only the documented procedure and then, second, erroneously ignoring the written consent and performing a more complex procedure when only limited written consent had been provided. In doing so, the patient was permanently injured," adds Qualls.

Informed consent forms are an integral part of the medical record, and as with all documentation, if it was not documented, it is difficult to show that it did not happen.

"As this case illustrates, consent forms should be handled uniformly and in the manner demonstrated in the first surgery — not the second. Bottom line, if there is no evidence of written consent, do not perform the procedure," advises Qualls.

Reference

  • Baribeau v. Gustafson, Texas Court of Appeals (Bexar County). Case No. 04-01-000732-CV (2002).