Medical Malpractice for Failure to Inform a Patient of the Results of Surgery

View of Ogden from the top of Sardine Peak Outlook Trail

I received a call recently with the following scenario: a pregnant woman went to her doctor for a prenatal checkup and it was discovered that she had a cyst on one of her fallopian tubes. Surgery was scheduled to remove the cyst. During surgery, the doctor found that the cyst had strangled the fallopian tube and removal was required. He removed the fallopian tube. Following surgery, the doctor failed to tell the woman that he had removed one of her fallopian tubes. Fast-forward two years and the woman is now trying to get pregnant again and it is taking a long time– six months and counting. She goes to a new doctor and he tells her that one reason for the difficulty in getting pregnant is because she has only one fallopian tube. Surprise!

This brings us to the question: does the doctor have a duty to tell the patient the result of the surgery? And a related question: even if we assume the doctor breached that duty, is the doctor liable for damages for failure to disclose the surgery results? And finally, what is the value of the harm?

Let’s take them in order:

Doctor’s Duty: the question of a doctor’s duty to inform typically concerns the duty to disclose all of the risks of a potential procedure to a patient before surgery (i.e., “informed consent”). Here, the duty to inform relates to post-surgery information. This information is no less important than before the surgery. The patient should have been told the results of the operation, what to expect long-term, and what follow-up care may be required. You could see how important this information would be in many situations in which the surgical result would require follow-up appointments to check on the condition. This is no different. Also, it’s a matter of helping your patient avoid the stress and anxiety that the surgical outcome could produce. In the above example, the doctor could have helped the patient avoid months or years of worry related to getting pregnant. This is often a stressful time anyways and to add this misinformation into the mix is doubly stressful.

Breach: I think at this point, the obvious answer is that the physician breached his duty to his patient. The question of damages, however, is nearly always a big issue. In this case, presumably the removal of her fallopian tube was medically necessary and required. The fact the patient now has but one fallopian tube is not the surgeon’s fault. The fact that the patient may have difficulty getting pregnant is not the surgeon’s fault. The harm is the delay in knowing what happened, what to expect, and not knowing for a period of months why the patient was having difficulty getting pregnant.

Value: Duty, breach of duty, and causation of harm all lead to the value or worth of the harm to the patient. As with many things, it depends on many factors. Here, the factors might include the patient and her personal disposition, the long-term effect of the breach (if any), loss of trust in medical personnel, etc. Because the harm in this example is limited to a more psychological harm, the damages could likely be less and perhaps minimal. It depends on the patient and whether the failure to inform led to further physical or psychological harm. 

The Take-Away: medical malpractice often requires a specialized bit of legal and factual analysis. It often requires expert testimony to establish duty, breach, causation, and damages. If you have been hurt or injured as a result of medical negligence or medical malpractice, I recommend that you consult with an attorney. If you would like more information or would like a free consultation about your specific circumstances, call me, Utah attorney Ken Reich, directly. I have substantial experience in medical malpractice and medical negligence that I would love to use to assist you.

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