Informed Consent and Emergency Telephone Calls to Physicians

By Sandra K. Foreman, J.D., LL.M. Candidate
Health Law & Policy Institute Graduate Research Assistant, Spring 2003

In Marsingill v. O’Malley, the Alaska Supreme Court decided the application of a jury instruction using the reasonable patient standard to decide whether a physician provides sufficient information and treatment choices when responding to a telephone call. The plaintiff, Vicki Marsingill, argued (1) that the trial court erred in excluding evidence of Dr. O’Malley’s (defendant) failure to pass tests for board certification as a surgeon, and (2) that the doctor breached his duty to give her enough information to make an informed decision about going to the emergency room.  The Court found no abuse of discretion in the ruling to exclude evidence because licensed physicians are allowed to perform general surgery without obtaining board certification. However, the Court held that the trial court committed reversible error in denying the requested instruction on the reasonable patient standard.  The judgment was vacated and the case was remanded for a new trial on plaintiff’s claim for lack of informed consent.

In October 1994, the defendant performed surgery to remove staples that another surgeon had previously placed in the defendant for weight loss. By January 1995, the plaintiff   was cleared to return to work. On the night of February 14, 1995, plaintiff became ill. Her daughter called defendant and stated that plaintiff felt nauseous, bloated, suffered from abdominal pain, was unable to burp, and constipated. Defendant advised plaintiff that he could not evaluate her over the telephone. But if she felt bad enough to call him at night that she should go to the emergency room. He repeated this several times but did not offer any opinion about the cause of her symptoms or tell her that her condition was potentially life-threatening or serious. He gave her the discretion to seek emergency room treatment.

When questioned about what would happen at the emergency room, defendant stated that the emergency room physicians would probably take x-rays and insert a nasogastric tube to relieve the pressure in her stomach. Plaintiff had previously received insertions of nasogastric tubes. After hearing that she would likely receive this procedure again, she ended the call by telling defendant and her daughter that she thought that she could burp and was feeling better. Later that night, plaintiff’s husband found her unconscious. An emergency operation revealed that she had experienced an intestinal blockage which  caused her to go into shock. She suffered brain damage and partial paralysis.

Expert testimony focused on the symptoms of post-surgical bowel obstruction and the appropriate response for a physician when a patient calls to complain about these symptoms. Plaintiff’s three experts testified that defendant’s actions fell below the standard of care. He failed to communicate the seriousness of her situation, the extent of the risk that she faced, and the importance of getting immediate help. A competent physician who wanted to encourage a patient to seek emergency room treatment would not have offered the possibility of being treated with the painful procedure of inserting a nasogastric tube. Defendant’s three medical experts stated that he provided very good care and the duty of a physician during a phone call is very limited. The defendant had acted properly in advising her to go to the emergency room, without engaging her in a speculative discussion of the possible causes of her symptoms. A physician cannot accurately diagnose a patient over the telephone and, therefore, has no obligation to speculate. The defendant acted appropriately by giving plaintiff an accurate answer in response to her question.

Plaintiff proposed jury instructions for alternative theories of liability. She argued that defendant committed malpractice by lacking adequate skill and knowledge to enable him to respond appropriately to her telephone call. He also breached his duty to give enough information about the potential seriousness of her symptoms to enable her to make an informed decision about the risks of failing to seek immediate examination and emergency room treatment. The proposed duty to inform instruction would have required the jury to decide the sufficiency of the defendant’s communications from the standpoint of a reasonable patient in plaintiff’s situation. Instead, the trial court directed the jury to measure the defendant’s duty to inform by relying exclusively on the expert testimony about his compliance with a general surgeon’s professional standard of care. The jury returned a verdict in favor of the defendant. Plaintiff appealed.

The Alaska Supreme Court balanced the distinctions between the physician standard of care and a physician’s duty to inform. Expert testimony concerning the professional standard of disclosure does not play a determinative role in the context of the reasonable patient rule. The scope of disclosure is measured from the standpoint of the patient. A physician must disclose those risks that are material to a reasonable patient’s decision concerning treatment. Although expert testimony remains relevant in narrowing the field of risks that are potentially material, materiality itself is judged by asking what a reasonable patient would want to know.

The Court rejected defendant’s argument that the factual predicate for the duty to disclose is absent since he did not recommend a specific treatment or procedure. The Court found  that defendant’s advice to go to the emergency room for treatment that would likely entail having a nasogastric tube inserted into her stomach amounted to a recommendation for treatment. In the context of a pre-existing doctor-patient relationship involving post-operative care, a physician’s recommendation to do nothing in the face of threatening symptoms is the equivalent of a treatment recommendation and should be accompanied by a duty of disclosure. In denying the request for an instruction on the reasonable patient standard, the trial court deprived plaintiff of her right to have the jury decide the issue from the standpoint of a reasonable patient.

The Alaska Supreme Court chose not to hold that the trial court committed harmless error and that the information given by the defendant to the plaintiff was nevertheless sufficient. As a result, the opinion leaves physicians practicing in Alaska in a state of ambivalence about the adequacy of their telephone conversations with patients after business hours. Like Alaska, the State of Texas uses the reasonable person standard. A physician is required to disclose information that would influence a reasonable person in deciding to consent to a medical procedure. The physician would inform the patient about the purpose of the treatment; the potential risks involved; the anticipated benefits; and alternative therapies. Whether Texas courts would extend the informed consent law to a similar fact situation as presented in the Marsingill case is unknown. However, to expect  physicians to alert patients about every conceivable medical possibility in the course of a telephone conversation could lead to grave policy consequences. Physicians could refuse to respond to patient calls after business hours. To hold the physician responsible when a patient declines repeated recommendations to go to the emergency room for an evaluation sets a very high and paternalistic standard that never considers the patient responsible for his ultimate refusal to comply with a medical recommendation.