Steven E. North

In New York State, doctors are responsible for informing patients of the risks of and alternatives to a surgical procedure. If they do not, and the surgery goes awry, they are legally responsible for damages (under the legal theory of “Lack of Informed Consent”).

However, patient choices can also affect a malpractice suit if there is liability by a doctor.

For example, if a patient is properly informed but does not agree to a reasonable course of action that would improve the situation, the hospital or doctor would not be responsible for the component of an injury that could reasonably have been abated by other measures.

The interplay between a doctor’s duty to inform and a patient’s right to decide on treatment will affect many cases. Or, put another way, many cases will be decided through the application of two principles:

• The patient should be the ultimate decision maker about the course his or her case should follow unless there is a mental disability or other reason the decision should be placed in someone else's hands.
• A doctor is responsible to inform a patient of the risks and alternatives associated with his or her condition, and treatment proposed.

There can also be situations in which a patient wants to follow an “unconventional” medical course, such as a holistic medical approach, or a high-risk procedure. These may include:

When a frail patient insists on surgery or another procedure . . .
There are situations in which an older patient wants an operation which, because of his or her frailty, may be almost destined to fail. In “One Last Question Before the Operation: Just How Frail are You?" (NYT October 27, 2017), author Paula Span discusses dilemmas that arise when operations that ordinarily would produce significantly favorable lifestyle changes present a high risk of complications or death in geriatric patients not strong enough to undergo a procedure.

She references a somewhat reliable assessment known as the "time-and-goal" evaluation, which measures how long it takes a person to rise from a chair, walk 10 feet, turn around, walk back to the chair, and sit down. While it might appear that such a test leaves much to be desired as a measure of whether surgery is going to go well or not, it is apparently used with some success.

The potential liability of a doctor in such a circumstance rests a great deal on whether the risks, alternatives, and benefits were presented to the patient sufficiently and in a manner that would enable him or her to make an informed choice. If the procedure itself is not contraindicated and an informed patient chooses to accept the risk, then the responsibility for the outcome rests on the patient's shoulders as it should. If, on the other hand, the patient is encouraged to proceed with an operation and the physician failed to take into account the "frailty factor" or failed to advise the patient of the unique risks imposed by his or her impairment, then the doctor may very well be responsible for the damages associated with a poor outcome.

Fighting cancer: The heroic course is not always the best
Not all what-to-do decisions are black and white. In a recent Medscape.com article, "Cancer: To Fight or Not to Fight” (September 29, 2017), author Brandon Cohen suggests that taking the "heroic course" – drastic measures – in trying to fight cancer is not necessarily the best choice. It may, according to the article, be even more heroic to yield to the disease. Obviously this is a very personal decision of the gravest consequences.

In the context of a medical malpractice lawsuit, the defendant may very well argue that the cancer could have been remitted had the patient chosen to “fight” it with the available methods. Such an argument cold limit the defendant’s liability for damages. This is not to say or in any way to urge that a patient's conduct should be molded to fit a lawsuit. Our advice to our clients as medical malpractice litigators is to conduct your life as you wish without regard to a lawsuit. We explain that one's life and lifestyle choices are the most important considerations and that good attorneys work within the circumstances provided and can and will adapt to a client’s choices.

Medical malpractice when a patient self-treats
Some patients treat their conditions with home remedies rather than taking traditional medical pathways. This, too, can be problematic in the context of a medical malpractice suit. In a recent New York Times article, "In Hong Kong, Folk Remedies Are Sickening Patients" (October 6, 2017), author Rachel Nuwer notes that tainted health supplements are sickening people.

She refers to a British Journal of Clinical Pharmacology 2005-2015 study involving more than 400 people aged one month to 90 years who were hospitalized after taking tainted supplements. Another study of more than 2,000 proprietary medicines found that 25% of them were contaminated.

If patients self-medicate rather than following a physician’s advice, thry are accountable for their actions. If reasonable medical science establishes that the course chosen by these patients is not sound, and allows the perpetuation of an illness that an appropriate medical course may have reversed, then the damages claimed in a lawsuit will be compromised accordingly.

The potential liability of the doctor in a case like this will rest largely on whether the risks, alternatives, and benefits were properly presented to the patient so he or she can make an informed choice. The bottom line: Doctors have their responsibility and patients have theirs. It is up to a doctor to actually inform patients of the medical risks and reasonable alternatives. If this does not occur, and a patient just signs a “consent form” or “agrees” to a surgery that was never adequately explained, the doctor is still legally accountable for damages caused.

But if the doctor truly explains the relevant facts, risks and alternatives, and the patient fails to take reasonable action, the patient may well be solely responsible for any harm caused. Both patients and physicians are accountable for their conduct and decisions, and these factors must be carefully analyzed in making a proper decision about whether to bring a case.