Oklahoma Supreme Court broadens scope of state’s informed consent law

By J. Craig Buchan

In the late 1970s, a patient named Norma Jo Scott underwent a hysterectomy performed by Dr. Vance Bradford that resulted in problems with incontinence. She sued Dr. Bradford for failing to disclose the risks and available alternatives of the procedure, which she claimed would have allowed her to make an informed decision regarding her care. The case resulted in the hallmark informed consent case of Scott v. Bradford.

The Scott decision was Oklahoma’s first recognition of a cause of action for a physician’s failure to obtain a patient’s informed consent for medical treatment. The court ruled that for consent to medical treatment to be effective, a physician must provide a patient with adequate information about the proposed treatment, the available alternatives, and the collateral risks. The prevailing practice in the four decades since Scott was decided has been to ensure that a patient is fully informed before having surgery or other medical treatment. However, the recent decision of Allen v. Harris by the Oklahoma Supreme Court expands a physician’s duty to obtain informed consent of a patient for non-invasive treatment or when refraining from affirmative treatment.

In the Allen case, Teresa Allen went to the emergency room in Duncan, Oklahoma, after accidently swallowing a small nail. She was seen by Dr. John Harrison, an emergency room physician, who reviewed X-rays and determined the nail had cleared Allen’s diaphragm. Dr. Harrison discharged Allen with instructions to “eat fiber and let the nail pass.” After severe vomiting the following day, Allen underwent emergency surgery to remove the nail and was treated for a perforated and infected bowel.

In her lawsuit, Allen alleged Dr. Harrison did not disclose the potential risk of letting the nail pass through her digestive system and failed to provide information regarding alternative medical options, including endoscopic and surgical removal of the nail. Most importantly, Allen argued that informed consent is not limited to surgical intervention or treatment, as contemplated in Scott.

Dr. Harrison argued he did not “affirmatively treat” Allen by advising her to let the nail pass. Further, as an emergency room physician, he was not required to give informed consent for surgical treatment options, as this was outside of his area of expertise. Finally, requiring informed consent when no affirmative treatment is undertaken would be an expansion of Oklahoma’s informed consent law.

The Oklahoma Supreme Court disagreed with Dr. Harrison and determined that under Oklahoma law, a physician must obtain a patient’s informed consent before implementing a nonsurgical or noninvasive course of treatment – regardless of the physician’s scope of practice. The court, indicating that the scope of a physician’s communication is measured by the “the patient’s need to know enough to enable him to make an intelligent choice,” determined that a patient’s basic right to know and choose invasive or non-invasive treatment “is the foundation of the full disclosure rule”. Implicit in the court’s ruling is an obligation by the physician to obtain informed consent even when no affirmative treatment is undertaken or recommended.

Recommendations for physicians

The Allen case does not change how a physician obtains a patient’s informed consent for surgical procedures. Physicians should continue to provide adequate information about treatment, alternatives and risks. Although Allen involved an emergency room setting, the ruling expands the requirements of informed consent for any nonsurgical or noninvasive procedures, including a decision not to treat – regardless of whether it is within a physician’s area of expertise or preferred method of treatment. Noninvasive or non-surgical treatments encompass large and very diverse medical care for patients. These treatments can include anything that does not require an incision into the body or removal of tissue, such as hearing aids, splints, external medical devices, or even visual examinations or observations.

The informed consent process can be very time-consuming, and the Allen decision could lead to confusion regarding what information a physician should provide a patient when noninvasive or no treatment is recommended. In discussing treatment options, alternatives, or non-treatment to patients, physicians should ask themselves whether they provided enough information to allow the patient to make an informed choice before implementing a recommended course of treatment, or no treatment at all. It is abundantly clear from Allen that a physician should always err on the side of caution by including rather than excluding such information.

If you have any questions about informed consent, how changes in your practice should be implemented or would like assistance in reviewing or evaluating your current practice, please do not hesitate to contact any of our healthcare industry lawyers.