Lonny Rosen Quoted in Article on Court of Appeal Decision

Lonny Rosen quoted in Article on Court of Appeal Decision

The case, which we blogged about, involved findings of negligence on the part of physicians who were part of a multi-disciplinary team but who did not perform part of the treatment at issue. The Court of Appeal confirmed that these physicians had a duty to obtain informed consent for the procedures.

From the article:

Lonny Rosen of Rosen Sunshine LLP, a specialist in health law who was not involved in the case, said he often reminds health professionals that consent is a process and not a form.

“The most important part of which is giving the patient the opportunity to ask questions and to have those questions answered,” he said. “This case affirms that an important part of this process is disclosure of the risks of all aspects of a plan of treatment, the risks of proceeding without treatment, the risks of alternative courses of treatment and a comparative analysis of these risks.”

Rosen said the case also recognizes that modern medical treatment may involve a team of doctors working together and that a physician not performing a procedure may, depending on the circumstances, have a duty of disclosure.

“Whether there is liability will depend on causation,” he said. “In order to break the chain of causation, the diagnostic radiologist who obtained informed consent to the first procedure in a multistep plan of treatment needed to disclose both the reasonably anticipated risks of undergoing all the procedures in the plan and the risks of deferring treatment.”

The court found that if the diagnostic radiologist disclosed these risks when obtaining consent for the first procedure in the plan Denman would then have been in a position to give his informed consent, Rosen noted.

“He would have known the risks involved in proceeding with the balance of the plan of treatment to effect a cure versus the risks of delaying further treatment. The injury he suffered, therefore, would have been incurred after the physicians obtained informed consent for the procedure that caused injury and Dr. ter Brugge’s negligence would, arguably, not have been causal,” he said. “Additionally, had the neurosurgeon who performed the third procedure provided information about the risks of the third procedure, which was anticipated, as well as the risks of deferring that procedure, Mr. Denman would not have proceeded.”