HSA 515

Health Care Law Learnscape 4: Informed Consent

Health Care Law Learnscape 4 Final December 14, 2012 1

Informed Consent Introduction:

In this Learnscape, the Student is presented a negligence case where a patient was given a treatment

without expressly consenting to it. The Student will discuss with the radiologist who worked with the

patient and did not approve of the treatment, and then will talk to the cardiologist who performed the

treatment without the consent of the patient. The Student will work with Bright Road Chief Counsel to

analyze the data and determine Bright Road’s liability in this case.

The student will submit the analysis and liability to the instructor for grading.

Characters:

1. Jeff Passmore, General Counsel at Bright Road Health System

2. Dr. Julie Roso, Radiologist at Bright Road

3. Dr. William Fredericks, Cardiologist at Bright Road

Locations:

1. Student’s Office

2. General Counsel’s Office

3. Hospital Hallway

4. Hospital Conference Room

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Scene 1: Meeting with Jeff Passmore, Chief Counsel

The Student meets with Jeff Passmore, who lays out a high level overview of the lawsuit involving Mr.

Davis. They briefly discuss the key points in a case regarding informed consent. Student is given

direction on who to talk to and how to help Jeff determine what the hospital’s liability is in this case.

Location Chief Counsel’s Office

Scene setup Jeff faces the Student from behind his desk.

On-screen characters Jeff Passmore

Off-screen characters None

On-screen text: Early morning meeting in the Chief Counsel’s office . . .

JEFF So, this case is a bit different from the some of the other cases we’ve seen

recently. Are you ready for a challenge?

STUDENT I sure am, Jeff. How is the case different?

NOTE: The notepad icon is highlighted and an on-screen text bubble appears.

On-screen text: Remember to take notes as you go. These notes will be available throughout, and will

help you write your recommendation at the end.

Student is able to open the notepad and take notes during the rest of the scene with Jeff.

JEFF With this lawsuit, we’ll be stepping outside of the world of negligence and into

the arena of informed consent.

STUDENT OPTION 1 So, we performed an unauthorized procedure?

STUDENT OPTION 2 Can you discuss the specifics of the case?

JEFF RESPONSE 1 Yes, we did. Informed consent is the legal doctrine that protects a patient’s right

to know the potential risks, benefits and alternatives of a proposed procedure.

A patient has a right to be informed before giving consent and the patient has a

right to expect the physician will honor the patient’s wishes.

Response 1 kicks the Student back to options.

JEFF RESPONSE 2 Yes. Mr. Davis filed a suit against Bright Road because when he underwent a

cardiac catheterization, the cardiologist extended the procedure beyond which

Mr. Davis did not consent to.

Response 2 allows the Student to proceed.

STUDENT Was Mr. Harris harmed by the additional treatment?

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JEFF Yes. As I understand it, he will need to be on medications to prevent blood clots

and he will need long-term follow-up. However, the wrongdoing here was the

fact that the physician did something to the patient that he expressly stated he

did not want done.

STUDENT OPTION 1 Was it an emergency treatment?

STUDENT OPTION 2 What was the procedure?

Student can click on any option to proceed. Student must choose both eventually.

JEFF RESPONSE 1 No. It would have been better if it were. That would have allowed the

cardiologist to initiate emergency treatment while an attempt was being made

to reach the appropriate party for consent, such as the spouse or parent. But, in

this case, it was not an emergency.

Response 1 kicks the Student back to options.

JEFF RESPONSE 2 The cardiologist inserted stents into Mr. Davis’s arteries during a cardiac

catheterization.

Response 2 allows the Student to proceed.

STUDENT OPTION 1 Isn’t that a standard part of the surgery?

STUDENT OPTION 2 So, what information would you like me to help gather?

STUDENT OPTION 3 Is there anyone else I should talk to?

Student can click on any option to proceed. Student must choose all eventually.

JEFF RESPONSE 1 I’m not sure if it is a standard part of cardiac catheterization. All I know is that

Mr. Davis crossed out the section on his consent form that called for the stents

to be added. During surgery his cardiologist, Dr. William Fredericks, added the

stents anyway.

Response 1 kicks the Student back to options.

JEFF RESPONSE 2 We’re trying to determine the hospital’s liability in this case. You can talk with

Dr. Fredericks to learn more about what he discussed with Mr. Davis prior to the

procedure. Did the patient fully understand what was being explained? Was the

patient competent and able to make decisions? These are questions we’ll need

answers to.

Response 2 kicks the Student back to options.

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Health Care Law Learnscape 4 Final December 14, 2012 4

JEFF RESPONSE 3 You can also talk to the radiologist involved, Dr. Julie Roso. She apparently

performed the test that indicated blockage in Mr. Davis’s arteries. But, from

what I can gather, she wasn’t even in favor of the cardiac catheterization to

begin with. Her viewpoint will be important to understanding the dynamics of

this case.

Response 3 allows the Student to proceed.

STUDENT That should be a good starting point.

JEFF Right. Just ping me if you need anything. Thanks!

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Scene 2: Discussion with Dr. Julie Roso, Radiologist

The student meets with Dr. Roso, the radiologist who treated Mr. Davis. She provides important first-

hand information of the situation, and discusses the right of the patient to hear alternative treatment

plans.

Location Student’s Office

Scene setup Julie sits in the left chair on the other side of the Student’s desk

On-screen characters Dr. Julie Roso

Off-screen characters None

On-screen text: Your first meeting is with Dr. Julie Roso . . .

STUDENT I appreciate you coming by, Dr. Roso.

JULIE Sure. So, what can I help you with?

STUDENT OPTION 1 [BRANCHING 1] Can you give some background on your involvement with Mr.

Davis’s care?

STUDENT OPTION 2 [BRANCHING 2] What happened when you explained the results of Mr. Davis’s

test to him?

STUDENT OPTION 3 [BRANCHING 3] Do you agree with how Dr. Fredericks handled the situation?

Student can click on any of the three options to continue, but must choose all eventually.

BRANCHING 1

JULIE RESPONSE B1 I was the radiologist who performed the CT scan on Mr. Davis, to determine his

risk for heart disease. His cardiologist, Dr. Fredericks, referred him to me. I had

never seen Mr. Davis before this day.

STUDENT OPTION 1 What were the results of the CT scan?

STUDENT OPTION 2 Did you have an opinion on the type of treatment Mr. Davis should undergo?

STUDENT OPTION 3 How long had you been working at the hospital at the time?

Student can choose any option to proceed.

JULIE RESPONSE 1 The CT scan for Mr. Davis revealed that there was approximately 30 to 35%

blockage in one of his arteries. It’s fairly significant, although it’s nothing to get

too alarmed about.

Response 1 kicks the Student back to Branching 1 options.

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JULIE RESPONSE 2 Personally, I’m not a big fan of invasive treatments, unless they are absolutely

necessary. Even cardiac catheterization, while a relatively routine procedure, is

something that I avoid unless I observe a higher percentage of blockage in any

of the arteries on the CT scan. In Mr. Davis’s case, I thought at the time that

alternatives to catheterization should be tried first, such as a change of diet,

exercise, and adding a statin, which is a well accepted cholesterol-lowering

medication.

Response 2 kicks the Student back to Branching 1 options.

JULIE RESPONSE 3 I’m pretty much the newbie around here compared to a lot of doctors. I think I’d

been at Bright Road for five years at the time of the occurrence with Mr. Davis.

Response 3 kicks the Student back to Main Branching options.

BRANCHING 2

JULIE RESPONSE B2 When I explained the results of the CT scan to Mr. Davis, he was pretty calm.

Like I said, it’s alarming, but it’s not earth-shattering news. We immediately

discussed how a treatment plan involving some low risk meds and some easy

diet changes would be very helpful in preventing progression of his heart

disease. But, I guess he got a different story from Dr. Fredericks.

STUDENT OPTION 1 Were you there when Mr. Davis discussed the test results with Dr. Fredericks,

and do you think the patient was competent?

STUDENT OPTION 2 Did you discuss Mr. Davis’s situation with Dr. Fredericks privately?

Student must choose both options to proceed.

JULIE RESPONSE 1 The patient was definitely competent to make his own decisions regarding his

care. There was nothing inhibiting that. And, no, I wasn’t there when the patient

reviewed the results of the scan with Dr. Fredericks. I wish I had been, though.

Looking back, it seems Mr. Davis had a gut feeling that things would be difficult,

because he even asked me if I would support him in communicating to Dr.

Fredericks that he did not want a cardiac catheterization and was more

adamant that he did not want stents placed in his arteries.

Response 1 kicks the Student back to Branching 2 options.

JULIE RESPONSE 2 Yes, I actually called Dr. Fredericks while Mr. Davis was in my waiting room. The

man wouldn’t listen to anything I had to say. Sometimes I think he’s a little too

eager to perform those costly cardiac catheterizations. Anyway, I had to tell Mr.

Davis that his doctor wanted to see him back in his office right away. He was not

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only recommending the catheterization, but that most likely stents would need

to be inserted as well. Needless to say, Mr. Davis was not happy.

Response 2 kicks the Student back to Main Branching options.

BRANCHING 3

JULIE RESPONSE B3 No, I don’t agree with how he handled it at all. It was as if he bullied Mr. Davis

into consenting to the procedure.

STUDENT OPTION 1 How do you know that?

STUDENT OPTION 2 So, Mr. Davis agreed to the cardiac catheterization, but not the stents? Why is

that?

Student can click on either option to proceed.

JULIE RESPONSE 1 I spoke with Mr. Davis afterwards. He told me that, on his way to Dr. Fredericks’

office, he ran into him in the hall. Right there, he said the doctor told him to get

ready for a cardiac catheterization and that he already had scheduled it for

eleven o’clock the next morning. A bit presumptuous I thought. When he asked

Mr. Davis if he had any questions, he asked him why he disagreed with my

opinion that catheterization wasn’t necessary. Mr. Davis said that Dr. Fredericks

made some evasive remark and that he would review the written report once

he got back to his office, but even after he did, he didn’t change his opinion. Mr.

Davis went on to say that Dr. Fredericks seemed somewhat disturbed that I

offered my opinion.

Response 1 kicks the Student back to Branching 3 options.

JULIE RESPONSE 2 Like I said, I think he felt pressured by Dr. Fredericks. He’s a very competent

doctor, but he tends to come across as superior, like he knows better and

shouldn’t be questioned. We had originally talked about stents and how, with

the amount of blockage he had, these were not at all necessary. I think this is

why he crossed out that part on the consent form. Oh, yes, Mr. Davis said he

recalled reading some newspaper articles that indicated cardiologists were

sometimes a bit too aggressive in their use of stents. So I think he was fairly

fearful of that.

Response 2 allows the Student to proceed.

STUDENT That leads me to my last question: How could Dr. Fredericks simply disregard

the consent form?

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JULIE That’s a very good question. I really don’t know. The form becomes part of his

file, and I know that we are supposed to review the file extensively before we

perform any invasive procedure at the hospital.

STUDENT Julie, that’s all I have for now. I appreciate your time.

JULIE Sure. I hope I helped in some way.

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Scene 3: Meeting Dr. Fredericks, Cardiologist

Next, the student meets with Dr. Fredericks, who is dismissive about the incident. Prior to the meeting,

the Student gets more information from Jeff on sound alternatives and consent forms.

Location Hospital Conference Room

Scene setup Student faces Dr. Fredericks who sits on the left side of the table. Student’s

laptop is open on the table for the start of the scene. It is closed after the video

chat with Jeff ends.

On-screen characters Dr. Fredericks, Jeff Passmore (on video chat)

Off-screen characters None

On-screen text: Before your meeting with Dr. Fredericks, you chat with Jeff . . .

JEFF (on video chat) You raise a great point regarding alternatives. It would be a good thing to

discuss with Dr. Fredericks, whether or not he discussed alternative treatment

plans with Mr. Davis.

STUDENT What happens if it turns out he didn’t?

JEFF (on video chat) Well, it reminds me of the case, Stover versus Surgeons, where the patient

wasn’t informed about alternatives to a specific heart valve that a handful of

surgeons recommended she receive. The heart valve the surgeon put in was

outdated and known to cause trouble, and there were existing valves that were

much better. The patient ended up suffering serious medical complications as a

result, and she won the case because medically sound alternatives existed, but

were not discussed with her prior to surgery.

STUDENT OPTION 1 Isn’t it just the patient’s word over the doctor, whether sound alternatives were

discussed?

STUDENT OPTION 2 What about the consent form? Is that a legally binding form? And, if so, was Dr.

Fredericks allowed to disregard it?

Student may choose either option to continue. Both options must be chosen eventually.

JEFE 1 (on video chat) Well, in our case, it might be difficult to prove, since it’s not a patently obvious

omission. Like, in the case of the heart valve, it’s clear that the patient would’ve

chosen a much safer alternative to the outdated heart valve if only she had

been informed about it.

JEFF 2 (on video chat) It varies from state to state, but in our case, yes, the hospital form is sufficient

evidence of written consent. I looked at the original form earlier today, and it

clearly shows that Mr. Davis crossed out the section about adding stents, and he

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even had the foresight to initial and date the change he had made, too. The fact

that Dr. Fredericks did not follow the wishes of the patient indicated on the

form does not bode well for him in this case.

STUDENT Speaking of which, it’s just about time for me to meet with him. Thanks for the

info, Jeff!

JEFF Let me know how your meeting goes.

NOTE: The video chat session ends, and the Student’s laptop appears closed.

On-screen text: Dr. Fredericks is here for your meeting…

STUDENT Thank you for coming, Dr. Fredericks. This shouldn’t take too long.

DR. FREDERICKS I appreciate that. I have a very busy afternoon.

STUDENT OPTION 1 [BRANCHING 1] Can you tell me if you discussed alternative treatment plans

with Mr. Davis?

STUDENT OPTION 2 [BRANCHING 2] Can we talk for a moment about the consent form that Mr.

Davis signed?

Student can click on either option to proceed, but must choose both eventually.

BRANCHING 1

DR. FREDERICKS RESPONSE 1 Yes, I certainly did discuss alternative treatment plans with Mr. Davis.

STUDENT OPTION 1 Did you fully explain the risks and benefits of his options?

STUDENT OPTION 2 From his complaint, it’s clear that Mr. Davis didn’t even want the

catheterization. Why wouldn’t he have chosen an alternative, then?

Student can choose either option to proceed. Both must be chosen eventually.

DR. FREDERICKS RESPONSE 1 Yes, I explained everything he needed to know. I told him his situation

wasn’t grave, but that, if we didn’t act quickly, it could get a lot worse. I

mentioned diet and medication, but, frankly, I’ve seen too many

patients get into serious trouble because they lack the willpower to

change their lifestyle. So, I highly recommended we take care of the

situation with a more reliable procedure, a cardiac catheterization.

Response kicks the Student back to Branching 1 options.

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DR. FREDERICKS RESPONSE 2 I don’t know. Perhaps he realized that a doctor might know a little more

than a layman like himself in this situation, and he decided to trust my

recommendation after all. I really can’t tell you what was going on

inside his brain at the time.

BRANCHING 2

DR. FREDERICKS RESPONSE 2 Yes, I saw the form. What would you like to know about it?

STUDENT OPTION 1 Prior to catheterization, did you see that Mr. Davis had crossed out the section

stating that stents would most likely be inserted, meaning that he objected to

the insertion of stents?

STUDENT OPTION 2 Is there a reason, particularly, why you ignored Mr. Davis’s expressly written

wishes in this situation?

Student can choose either option to proceed.

DR. FREDERICKS RESPONSE 1 Of course. I make it a point to thoroughly review all of my patients’

forms and records before I perform even the most minor of procedures.

It’s a matter of pride with me.

Response 1 kicks the Student back to options.

DR. FREDERICKS RESPONSE 2 This meeting is a waste of my time, frankly. Didn’t I already tell you that

Mr. Davis expressly trusted me with his care and treatment? I am his

doctor. I think I am better suited to determine whether stents were

needed or not in this situation, and I clearly, in my professional

judgment, believed they were needed. Now, if you don’t have any more

questions for me, today, I should be going.

STUDENT That’s all I have for today. Thank you, Doctor.

DR. FREDERICKS Of course.

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Health Care Law Learnscape 4 Final December 14, 2012 12

Scene 4 – Follow Up with Jeff Passmore

In this scene, the student meets with Jeff Passmore to discuss responsibility and lack of consent, as well

as the best way to proceed with Dr. Fredericks.

Location Student’s office

Scene setup Jeff Passmore is sitting across from the student.

On-screen characters Jeff Passmore

Off-screen characters None

On-screen text: You meet with Jeff Passmore to follow up on your progress . . .

JEFF So, how did your meeting with Dr. Fredericks go?

STUDENT OPTION 1 Well, Dr. Fredericks didn’t seem to want to take responsibility for what

happened. Whose responsibility is it, ultimately, his or the hospital’s?

**STUDENT OPTION 2 Should the surgery nurse or nurses have taken responsibility and made sure Mr.

Davis’s rights were respected per the consent form?

The Student may choose either option to continue.

JEFF You’re reminding me of a particular case, Mathias versus St. Catherine’s

Hospital. In this situation, the defendant did not consent to receive a tubal

ligation while under anesthesia for a cesarean section. The patient’s doctor

asked for the instrument to perform the procedure and, while the nurses

present tried their best to point out that they did not have consent, they did not

stop him from performing the procedure.

STUDENT OPTION 1 How did it turn out?

STUDENT OPTION 2 Can you explain how this relates to our case?

Student must choose both responses to proceed.

JEFF RESPONSE 1 The court granted summary judgment for the hospital finding that it was the

responsibility of the patient’s physician to ensure the patient’s wishes were

followed. The physician is in the best position to know the patient’s wishes and

to explain and evaluate the risks of a particular procedure. With the patient on

the procedure table and sedated, it is not a good time to second guess the

physician’s decision and hold a formal hearing as to whether or not the

physician is going beyond the scope of what the patient consented to. The

patient may, for example, after having signed the consent form said, “Dr., do

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Health Care Law Learnscape 4 Final December 14, 2012 13

whatever procedure you think is necessary.” The fact that the patient did not

change the consent form leaves the physician out on a limb. The most the

nurses could do was to remind the physician that the consent form did not

authorize additional procedures.

Response 1 kicks the Student back to options.

JEFF RESPONSE 2 Here’s where our situation is different. Dr. Fredericks may be considered Mr.

Davis’s physician, but he’s also an employee of the hospital. I should have made

this clearer earlier, perhaps. By the way he talks; anyone would think that he

was still in his own practice. But, Dr. Fredericks left his private practice and

joined Bright Road almost a year ago.

Response 2 allows the Student to proceed.

STUDENT OPTION 1 (incorrect) So, since Dr. Fredericks is an employee of the hospital, he is not

responsible for checking the consent form.

STUDENT OPTION 2 (correct) So, as both the patient’s physician and an employee of the

hospital, Dr. Fredericks was responsible for checking the

consent form.

Student can choose either option to continue.

JEFF RESPONSE 1 You’re missing the point, here. He is still the patient’s physician, so he is

responsible for abiding by the consent form. The question of his is employment

helps us determine liability.

Response 1 allows the Student to proceed.

JEFF RESPONSE 2 Yes, he was responsible. And, because he was an employee of the hospital at

the time, then the hospital may be liable for his actions.

Response 2 allows the Student to proceed.

STUDENT I still don’t know who to believe when it comes to lack of consent involving

sound alternatives.

JEFF Both sides seem firm in their positions, huh? I had a feeling this might happen. And, it’s

not a clearly obvious case, like that of Riser versus American Medical Intern. This was a

case where the doctor was ordered to perform one procedure and, without even

discussing it with the patient, performed a similar one that had greater risks and a

disastrous outcome. It was clear to the court that, had the doctor discussed both

options, the patient would’ve chosen the one with less risk.

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Health Care Law Learnscape 4 Final December 14, 2012 14

STUDENT So, what should I do regarding Dr. Fredericks, then?

JEFF When you meet him again, I would make it clear to him where you’re coming from. It’s

understandable that someone of his stature would be defensive. But, he needs to know

that, as an employee of the hospital now, we are in danger of facing liability on this. He

needs to consider the position he has put Bright Road in, and understand how to avoid

this in the future.

STUDENT It’s hard to get through to him. Any suggestions?

JEFF Maybe you could call Dr. Roso into the meeting. She may be younger, but she’s actually

been at Bright Road longer than he has, right?

STUDENT Yes. That’s a good idea, Jeff.

JEFF Keep me posted!

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Scene 5: Meeting with Julie and Dr. Fredericks

The student meets with both Julie and Dr. Fredericks to discuss the consent form and hospital liability in

this and future situations.

Location Hospital Conference Room

Scene setup Julie and Dr. Fredericks sit on opposite sides of the table

On-screen characters Dr. Julie Roso, Dr. Fredericks

Off-screen characters None

On-screen text: At your next meeting with both Dr. Julie Roso and Dr. Fredericks . . .

JULIE So, the original idea behind consent forms and informed consent was about

communication and decision. It’s true, we’re required to disclose risks, benefits and

alternatives of a procedure to our patients, but it shouldn’t just be looked at as a way to

avoid lawsuits. The goal is to allow patients make the best possible informed decision

about their care and treatment.

DR. FREDERICKS I don’t see informed consent as just a way to protect myself from a lawsuit. I

was just saying that the forms, the consent forms have become more of legality

than anything.

STUDENT To Dr. Roso’s point, I think she’s saying that this was not the original intention, even for

the forms.

DR. ROSO Right. Our consent forms lay everything out in detail, top to bottom, so, before they

undergo a life-changing procedure, our patients can read it thoroughly and make sure

this is what they want to do. Hearing it spoken and seeing it explained on paper in front

of you can be totally different experiences, with different results.

STUDENT OPTION 1 So, do you think physicians are seeing this as more of a legality too?

STUDENT OPTION 2 What can be done to ensure consent forms are given the right amount of

attention?

STUDENT OPTION 3 Is it safe to say that, since Mr. Davis modified the consent form, initialed and

signed it, that he was properly informed in this case?

Student may click on any option to continue, but must choose all eventually.

JULIE RESPONSE 1 Unfortunately, yes. I think, especially in this more economically strained

time, we’re expected to do more in less time. So, we may not always

take the time to go through the paperwork thoroughly, especially in

cases that seem to be cut and dry.

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DR. FREDERICKS RESPONSE 1 She’s right. I was thinking more about Mr. Davis’s case last night, and,

really, I can’t recall whether I saw the consent form before his surgery after all.

The more I think about it, the more I think that I relied on our discussions more

than the forms.

This response kicks the Student back to options.

JULIE RESPONSE 2 I think awareness is key. The Administration has to make a more effective effort

in training staff with emphasis on discussing consent forms with the physician

prior to proceeding with any invasive procedure.

DR. FREDERICKS 2 You’re right. Improving team communications would be more reliable and

provide greater accountability, as well. It may be the responsibility of the

doctor, but if everyone works together to ensure the patient’s wishes are being

met, I think it will help greatly.

Response 2 kicks the Student back to options.

DR. FREDERICKS RESPONSE 3 Well, yes, but even beyond that, I think our discussions prior to the

surgery implies verbal consent, doesn’t it?

JULIE RESPONSE 3 The question is, which one trumps the other, verbal consent or written consent?

Response 3 allows the Student to proceed.

STUDENT I’m pretty certain that they’ll be able to use the consent form in court to

outweigh any conversations you may have had prior, unless you can show proof

the patient had changed his mind from what was written on the consent form.

That is not always an easy task. It would be better to have the patient sign a

new consent form prior to proceeding with an invasive procedure. Even a note

in the patient’s record noting the patient’s change of mind prior to undergoing

the procedure would have been helpful.

DR. FREDERICKS You may be right. It is a signed document, after all, and, I made no additional

notes in the patient’s record that contradicts his wishes.

JULIE Again, I think the emphasis moving forward should be on a mindset that

respects the patient’s ability to understand their condition, to process the

necessary information and then take an active role in the decision process.

Some doctors tend to view patients like they’re on some sort of lower level of

intellect.

DR. FREDERICKS I know. I hate when I see that. I always try to avoid that in my practice. Well, at

least I did when I had my own practice.

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STUDENT OPTION 1 Has it been a difficult transition from your practice to being an employee of the

hospital?

STUDENT OPTION 2 I think this brings up a good point about the shift in liability from a private

practice physician to a member of the hospital’s employed staff.

Student must choose each option to proceed.

DR. FREDERICKS RESPONSE 1 Well, I wouldn’t say it’s been too difficult, but, yes, it’s taken some

adjustment. There are plenty more rules and regulations that need to be in

place here at the hospital, naturally.

JULIE RESPONSE 1 True, but I think there is also a better environment of collaboration here, too.

We hope that doctors can consider themselves as part of a smooth-running

process where everyone works together to the patient’s ultimate benefit.

Response 1 kicks the Student back to options.

DR. FREDERICKS RESPONSE 2 I think I understand what you’re saying. This situation has opened my

eyes a little more to the fact that I need to shift my mindset over like Dr. Roso

mentioned, now that I’m part of the greater organization here.

JULIE It’s a major benefit to me that the hospital has these procedures and well-

executed consent forms to help me. And they always have new and talented

colleagues like yourself, Dr. Fredericks, for me to work with to provide the best

care possible to the patient.

DR. FREDERICKS Thank you. I agree. I look forward to taking advantage of this more, like you

said. I appreciate you both taking the time to talk this through.

Julie nods as the scene fades.

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Scene 6: Review and Analysis with Mentor

In this scene, the Student meets with Jeff to review the details of Mr. Davis’s case. Jeff will ask

questions to help the Student analyze and prepare for writing a recommendation on the hospital’s

liability, with emphasis on informed consent.

Location Chief Counsel’s Office

Scene setup Student faces Jeff who sits at his desk.

On-screen characters Jeff Passmore

Off-screen characters None

On-screen text: Later, you discuss Mr. Davis’s case with Jeff . . .

JEFF So, where do we stand with Mr. Davis’s case?

STUDENT I have a lot of good information that I’d like to share with you and get your

thoughts on.

JEFF Great. It sounds like you had a good breakthrough with Dr. Fredericks. What

have you learned?

STUDENT OPTION 1 [BRANCHING 1] Dr. Fredericks was relying heavily on verbal consent.

STUDENT OPTION 2 [BRANCHING 2] The patient was competent, but could’ve benefited from

hearing about more sound alternatives.

STUDENT OPTION 3 [BRANCHING 3] The hospital needs to provide better training to avoid liability

stemming from employee mistakes like Dr. Frederick’s.

Student can click on any option to proceed. Student must choose all eventually.

BRANCHING 1

JEFF RESPONSE B1 What are the implications of this, then?

STUDENT OPTION 1 Patient’s rights can be ignored if they’re unable to speak up for themselves.

STUDENT OPTION 2 Verbal consent can’t hold up alone in court, can it?

STUDENT OPTION 3 The hospital is less protected with only verbal consent in place.

Student can choose any option to proceed.

JEFF RESPONSE 1 That’s a good observation. It seems like Mr. Davis was unable to explain to Dr.

Fredericks that he didn’t want the cardiac catheterization or the stents. In the

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Health Care Law Learnscape 4 Final December 14, 2012 19

end, his only recourse was to cross out at least the part about the stents on the

consent form.

Response 1 kicks the Student back to Branching 1 options.

JEFF RESPONSE 2 Well, written consent is actually not required for every procedure, just the ones

that pose an unusual risk in one way or another to the patient. There was a

case, Siliezar versus East Jefferson General Hospital, where the patient had the

procedure explained to her, she agreed to the procedure, but never signed a

consent form. Afterwards, the patient tried to sue the hospital, having later

regretted the procedure. But, the court sided with the hospital, because, in this

case, the explanation of the procedure was sufficient.

Response 2 kicks the Student back to Branching 1 options.

JEFF RESPONSE 3 I agree that the hospital is less protected. That’s why we have a policy that a

consent form must be signed. The question is whether that form is reviewed or

not before surgery, to make sure any changes in the patient’s wishes are

understood.

Response 3 kicks the Student back to Main Branching options.

BRANCHING 2

JEFF RESPONSE B2 Is this what Dr. Roso told you?

STUDENT OPTION 1 Yes, she confirmed that he not only was competent, but he had asked her to try

to talk Dr. Fredericks out of doing the procedure.

STUDENT OPTION 2 Dr. Roso explained alternatives briefly, but that is the duty of the patient’s

physician, right?

Student must choose both options to proceed.

JEFF RESPONSE 1 See, that’s unfortunate. Mr. Davis obviously didn’t understand his rights as a

patient. He could have easily turned down the procedure altogether and gone

elsewhere for a second opinion.

Response 1 kicks the Student back to Branching 2 options.

JEFF RESPONSE 2 Yes, it was Dr. Fredericks’ responsibility to discuss sound alternatives with the

patient to the patient’s satisfaction. Of course, since he is an employee of the

hospital, we are the ones who will have to answer for his mistake here.

Response 2 kicks the Student back to Main Branching options.

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Health Care Law Learnscape 4 Final December 14, 2012 20

BRANCHING 3

JEFF RESPONSE B3 So, you’re saying the hospital policies are lacking right now? Or is it just training

that needs to be improved?

STUDENT OPTION 1 They have a good policy requiring a consent form. But, obviously, it didn’t help

in this situation.

STUDENT OPTION 2 I think they just need to train better on accountability, making sure the consent

form is adhered to.

STUDENT OPTION 3 Employees need to understand the gravity of the consequences of treating

patients without proper consent.

Student can click on any option to proceed.

JEFF RESPONSE 1 Right. It would’ve certainly helped if Dr. Fredericks and his procedure team had

noticed Mr. Davis’s change to the form. We definitely need to get away from a

paper-shuffling mentality, and return to greater attention to detail.

Response 1 kicks the Student back to Branching 3 options.

JEFF RESPONSE 2 You’re right. As technology changes, as we’re expected to move faster, see

more patients with the same or better results, it seems a greater emphasis on

training is necessary. We need training that informs the staff of the pitfalls and

dangers of working in this ever-changing medical-legal environment.

Response 2 kicks the Student back to Branching 3 options.

JEFF RESPONSE 3 Definitely. Just like in the case of Ramos versus Pyati, where the doctor

performed something out of scope in the middle of surgery, taking a piece of

tendon from the patient’s pinky finger to help fix the index finger, the court will

not look favorably on doctors doing more to a patient than they agreed to.

Unless, of course, it’s needed to save their lives.

Response 3 allows the Student to proceed.

STUDENT What happened in the Ramos v. Pyati case?

JEFF The court sided against the doctor and with the patient. There was damage

involved, since the patient lost some mobility in the finger that the tendon was

taken from. And the doctor never discussed this possibility or received consent

from the patient prior to surgery.

STUDENT How does this relate to our case?

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Health Care Law Learnscape 4 Final December 14, 2012 21

JEFF Remember, as we discussed early on, every patient has a right to allow or

disallow any procedure, regardless of whether it is for good or ill, or if the

results are beneficial or not. Mr. Davis expressly turned down the insertion of

stents during his surgery, and yet Dr. Fredericks added them anyway. As you

probably know, stents have been recalled over the years. You can’t recall an

implanted stent.

STUDENT There’s no way around that, is there?

JEFF No. It doesn’t look like it. Even though Dr. Fredericks may think he had verbal

consent, the written consent holds up over verbal, any day. Look, I’ve got a

conference call in a few minutes. Why don’t you write up your recommendation

when you have the chance, and send it to me to look at?

STUDENT Will do. Thanks, Jeff.

JEFF Oh, one more thing, although we didn’t discuss it here, performing an unwanted

procedure could lead to a civil suit for battery. In some instances even criminal

charges have been placed against those who have fraudulently for financial gain

inserted stents into patients who had no need for them. Luckily we don’t have

those issues in this case.

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Health Care Law Learnscape 4 Final December 14, 2012 22

Scene 7: Making Your Recommendation

In this scene, the Student will write an email to Jeff Passmore with a recommendation on the hospital’s

liability in Mr. Davis’s case. The recommendation will include details from the previous conversations to

support the Student’s position.

Location Student’s Office

Scene setup Student is sitting at their desk facing their open laptop and email program.

On-screen characters None

Off-screen characters None

On-screen text: In the body of the email below, type your recommendation to the Chief Counsel on the

hospital’s liability in Mr. Davis’s case. Your response should be 250-500 words in length. Be sure to use

the notes you’ve taken throughout your interviews to back up your position, with emphasis on whether

the consent given by Mr. Davis was sufficient enough, prior to surgery.

To: Jeff Passmore, Chief Counsel, Bright Road

Re: Recommendation on Mr. Davis’s case

Body of

Email:

NOTE: Student will be able to fill in their recommendation here.

NOTE: The student will be given an option to “Submit” the email after writing the recommendation. After

the student submits the email, the computer screen fades to the previous view of the student’s office.

On-screen text: Your recommendation to Jeff Passmore has been sent! Nice work!

FADE OUT.

End of Learnscape 4