Comparing Theories of Physician Accountability for Misrepresentations of Experience and Competence

Between the Scalpel and the Lie: Comparing Theories of Physician Accountability for Misrepresentations of Experience and Competence

Bouknight, Heyward H III

I. Introduction

As science and technology catapult forward, American consumers have more and more options to take advantage of new medical advances.1 The rising number of surgeries performed each year is partially because of a higher availability of elective surgeries as opposed to surgeries performed to save a patient’s life.2 Furthermore, studies show that doctors perform many elective, but still risky, surgeries for questionable or inappropriate reasons.3 Doctors also use magazine and television advertisements to lure patients into undergoing liposuction and other purely aesthetic surgeries.4 Because anyone with a medical license can perform cosmetic surgery, tragedies are not uncommon.5

Medical associations cannot adequately police all doctors; some responsibility lies with the patients to protect themselves.6 Dr. Lawrence Horowitz, former director of the U.S. Senate Subcommittee on Health, stated, “At its best, American medicine is the finest in the world. But you can’t get the best by chance-you have to work at it. And often, the choices you make are more important in determining the outcome than the nature of the disease itself.”7 An informed medical consumer must ask questions to make informed decisions.8

After deciding to have surgery, a medical consumer must also make an informed decision in choosing a surgeon.9 all surgeons are not created equal.10 One of the most important inquiries that a potential patient can make involves the surgeon’s credentials and experience level.” Realizing the importance of an informed patient, several state legislatures have created databases allowing consumers to obtain information about a potential doctor or surgeon with a single phone call.12 The creation of such statutes demonstrates widespread public acknowledgement that informed patients make a difference in combating medical disasters.13

Despite the increased media coverage and the initiative in state legislatures to encourage informed decision-making by medical consumers, the legal system has thus far been unwilling to respect the importance of such behavior.14 Consider the plight of Cecil Deville, a thirty-year-old man who recently suffered a heart attack. After recovering from the heart attack, Mr. Deville meets with Dr. Evil to discuss his diagnosis. Dr. Evil informs Mr. Deville that his life depends upon receiving bypass surgery. Mr. Deville has read several articles about the importance of being an informed medical consumer and asks Dr. Evil how many times he has performed such a procedure and what his success rate has been. Dr. Evil explains to Mr. Deville all of the possible complications of the surgery and claims that he has performed bypass surgery over 100 times in the last year with a success rate of ninety-seven percent. After performing research on the Internet, Mr. Deville finds Dr. Evil’s experience and success rate to be an acceptable risk. Mr. Deville consents to the surgery.

Unfortunately, Mr. Deville’s luck is not good, and he develops complications from a blood clot following the surgery. As a result, Mr. Deville is confined to a wheelchair for the remainder of his life. During depositions for his medical malpractice lawsuit, Mr. Deville learns that Dr. Evil has only performed bypass surgery twenty times in the previous year and that his success rate was only eighty-five percent. This Note considers the legal actions available to Mr. Deville in light of Dr. Evil’s misrepresentation of his qualifications to perform the bypass surgery.

Three theories would allow the patient in this fact scenario a cause of action: the informed consent doctrine, the deceit-based tort of fraud, and some states’ consumer protection statutes.15 State courts differ as to which theory is most appropriate. The New Jersey Supreme Court denied a plaintiffs fraud claim stating that a more appropriate basis for legal action would be the informed consent doctrine.16 But the Pennsylvania Supreme Court refused to allow an informed consent action against a physician misrepresenting his credentials, opting instead to endorse a fraud action.17 The Pennsylvania court found that using the informed consent action to include a doctor’s experience would necessitate expanding the doctrine to include personal attributes of a physician and would only create a redundant cause of action.18 Finally, Texas courts allowed a deceived patient to bring a claim under the state’s consumer protection statute.19 But this avenue is only available in a few states.20 Traditionally, state consumer protection statutes have exemptions for the “learned professions” including both lawyers and doctors.21 More recently, some state courts have allowed patients to sue doctors under the consumer protection statute so long as medical negligence is not the basis of the claim.22

This Note addresses what cause of action a state court should allow in a situation similar to the hypothetical involving Mr. Deville and Dr. Evil. Part II of this Note begins with an examination of the history of a patient’s ability to hold her doctor liable, with particular emphasis on the history of judicial paternalism toward doctors and the development of the informed consent doctrine.23 Part III takes a more in-depth look at existing case law by examining the three potentially available actions.24 Part FV analyzes this case law in light of public policy concerns focusing on the burdens of proof presented by an informed consent doctrine and the importance of trust in a doctor-patient relationship.25 Finally, Part V concludes by recommending that state courts allow a fraud action for deceived patients.26

IL Background

An analysis of the development of medical malpractice jurisprudence is crucial to understanding this issue. To this end, this Part first focuses on judicial paternalism in medical malpractice and the ensuing breakdown of the tradition of protecting physicians in recent years. Next, this Part traces the historical evolution of the doctrine of informed consent. Finally, this Part considers the emerging role of outcome status in managing health care quality.

A. Medical Malpractice Paternalism

The dominance of allopathic medical treatment was not the result of market economics, but instead resulted from a political power struggle between competing medical factions.27 Competing medical groups sought political recognition in the name of consumer protection, claiming that “the esoteric nature of [their] craft was understandable only to the initiated, that laymen could not distinguish between ‘charlatans’ and true professionals.”28 At the turn of the century, allopaths achieved, through legislative mandates, a monopoly right to practice medicine in nearly all states.29 After gaining political recognition, allopaths reinvoked this rhetoric, this time to claim that medicine was too complex for laymen to regulate.30 Furthermore, the judiciary deferred to the paternalistic American Medical Association’s code of ethics as a means of governing the medical profession.31

The tradition of protecting doctors began to break down amid media disclosure in the 1980s that revealed much greater incidences of medical negligence than the general public had previously presumed.32 From 1976 to 1986, the number of malpractice claims per 100 physicians increased more than ten percent per year.33 Predictably, this increase in claims and greater media exposure created a heightened emphasis by the public on judicial remedies and patients’ rights against doctors.34 Unfortunately, recent reports demonstrate that this action has not fixed the problem; a 1999 report from the National Academy of Sciences’ Institute of Medicine estimated that between 44,000 and 98,000 American hospital patients die each year due to medical errors.35 The recent move away from judicial paternalism has been only partial and has not eliminated the enormous problem of medical error facing American patients today.

B. Development of Informed Consent

Despite courts’ paternalism towards physicians, all states have established the doctrine of informed consent, providing at least limited rights to information prior to surgery.36 Hippocrates, the creator of the Hippocratic oath still given to many doctors, expressly counseled physicians to perform their duties “calmly and adroitly, concealing most things from the patient while you are attending to him.”37 For twenty-four centuries, patients allowed physicians to heed Hippocrates’ advice.38 However, at least in theory, patients are no longer powerless to question the decisions of their physicians because of the adoption of the informed consent doctrine in all fifty states.39

Requiring patient consent developed initially as a battery action and only required that a doctor obtain consent for the particular procedure.40 Patient autonomy in medical decision-making originated from a statement by justice Cardozo while he served as a judge on the New York Court of Appeals.41 Cardozo declared: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”42 Battery was the first tort to represent patient autonomy because the early fact patterns involved patients who either specifically objected to an operation or patients who authorized a different operation from the one actually performed.43 Despite the recognition of a patient’s right to consent in the early twentieth century, judicial approaches to consent remained paternalistically protective of physicians.44 For example, in 1955, a North Carolina court refused to hold liable a surgeon who failed to advise his patient of the inherent dangers of the impending surgery.45 Despite severe injuries resulting from the surgery, the court found it understandable for a surgeon to withhold such information from the patient for the purpose of curtailing undue apprehension in the patient.46 Clearly, this court refused to recognize a patient’s right to bodily integrity.47 Although many courts granted patients limited autonomy, judicial paternalism frequently remained an overbearing burden on the patient.48 Courts limited the tort of battery to protecting a patient’s ability to refuse the act of surgery, but the tort did not obligate the physician to inform the patient of the risks and alternatives of the procedure.49

During the last fifty years, the right of patients to consent has expanded into a right to specific information about the procedure. The California Court of Appeal coined the modem phrase “informed consent,”50 which now represents a national doctrine of potential liability for all physicians.51 But courts also abandoned using the battery action in favor of using negligence to protect patients’ rights to this information.52 Although informed consent imposes an obligation on the physician to disclose information about a proposed treatment to a patient to consider while deciding whether to permit the treatment, the use of negligence law focuses the court’s decision not on the disclosure of the doctor, but on whether the patient’s injury resulted from a breach of the doctor’s disclosure duty.53

After the California Court of Appeal coined the phrase, other state courts adopted the same terminology, but the doctrine’s ambiguity resulted in a split regarding the correct standard of disclosure.54 The Kansas Supreme Court chose a physician-based standard of disclosure in the next major case adopting the informed consent doctrine.55 The court stated the standard by emphasizing that the duty to disclose “is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances. How the physician may best discharge his obligation to the patient in this difficult situation involves primarily a question of medical judgment.”56 Thus, in the same opinion acknowledging patients’ right to information, the court also allowed physicians an easy escape from liability.57 The physician-based standard requires the plaintiff to offer expert medical testimony to establish that a reasonable medical practitioner would make the disclosure and then to show that the defendant failed to comply with this standard.58 Many early cases discussing informed consent adopted this “doctor knows best” test for the duty of disclosure.59 Thus, while courts in most states grew to accept the informed consent doctrine, the courts continually favored a paternalistic physician-based standard.60

Perhaps because of expanding recognition by courts of a physician conspiracy of silence, which made it very difficult for many patients to make out a prima facie case under the physician-based standard, courts in the early 1970s created a reasonable patient standard.61 Although not the first case to announce a patient standard, the celebrated case of Canterbury v. Spence62 is the leading case.63 The Canterbury court rejected the physician standard, stating, “Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.”64 In jurisdictions adopting the Canterbury reasonable patient standard, courts no longer required plaintiffs to produce expert testimony to establish what information the physician should have disclosed.65 Instead, courts allowed juries to choose whether a “reasonable patient” would have desired the information in question.66 Although commentators frequently cite Canterbury for the reasonable patient rule, judge Robinson, the author of the opinion, succumbed to the same pressures as his forbearers and followed his bold statement of patients’ rights with escape valves for the physicians to avoid this standard.67 For example, the opinion states that “prevailing medical practice must be given its just due” when medical judgments enter the physician’s disclosure decision.68 Despite its shortcomings, commentators recognize Canterbury’s positive role in reinvigorating the policy of a patient’s right to selfdetermination of medical treatment.69

Thirty years after Canterbury, states’ standards defining a physician’s duty to disclose information still vary.70 Nonetheless, courts are nearly unanimous in categorizing informed consent as a negligence action.71 The Supreme Court of Wisconsin identified five reasons why negligence became the preferred theory of liability.72 First, the doctor is acting for the patient’s benefit, and the failure to disclose is not equal to an unauthorized procedure.73 Second, failing to give information is not an affirmative, intentional act.74 Third, failing to disclose is not a contact or touching.75 Fourth, the doctor’s malpractice insurance often does not cover intentional misconduct.76 Finally, failure to disclose information does not warrant the possibility of punitive damages.77

Despite the near unanimity among state courts, commentators find glaring weaknesses in placing the informed consent doctrine under the rubric of negligence.78 Although some of the reasons supporting the negligence standard seem to reflect a misreading of tort law,79 the overriding principle behind choosing the negligence theory was the ability of judges to insulate further physicians from liability.80 Under the negligence theory of liability, if a patient successfully establishes a breach of the duty to inform, the patient still has another difficult proof problem in establishing causation.81 First, the patient must establish injury causation by proving that the procedure chosen by the physician resulted in the plaintiffs injuries.82 Next, the patient must also establish decision causation by proving that the patient would have chosen a different course of action had he known the withheld information.83 This higher burden of proof imposed on the patient is likely one reason courts have refused to use a battery theory.84 Despite the flaws in its reasoning, the informed consent doctrine today appears to be deeply rooted in negligence law.85

Although the informed consent doctrine still fails to provide a true right of patient self-determination, the doctrine is a work in progress and has created an awareness of patients’ rights to information.86 The judicial development of informed consent has become one of the forces altering the attitudes of a new generation of doctors toward their patients.87 Because informed consent reflects one of society’s highest values, individual autonomy, courts will continue to struggle with the conflicting needs to protect physicians from overbearing liability and the need to protect patients’ right to choose appropriate medical treatment.88 Outside of the courtroom, the doctrine also has positive effects, as medical schools are now training doctors in the importance of communication with patients and no longer are teaching the virtues of silence.89

C. Health Care Quality and Outcome Management

Despite the goal of medical malpractice claims and the informed consent doctrine to eliminate the “bad apples” in the medical field and to create a better health care system, medical error remains an alarmingly high cause of death and injury.90 The failure of medical malpractice litigation to deter costly medical errors has led some commentators to urge the use of competitive market forces to control the rising incidence of medical error.91 Market advocates believe that informed consumers will shop for health care services based on quality and thereby drive poorly performing doctors out of business.92 For consumers to influence the medical market, however, they must have access to quality assessment information.93

A vedis Donabedian’s pioneering work on health care quality assessment has instigated a new theory of protecting against medical error-outcome analysis.94 Donabedian defines “outcomes” as “change[s] in a patient’s current and future health status that can be attributed to antecedent health care.”95 Meaningful study of outcomes is not always easy because although some outcomes, like death, are clear-cut, many others, such as patient attitudes and satisfaction levels, are more difficult to measure.96 Nonetheless, some states are beginning to amass databases of physician profiles containing disciplinary actions, experience levels, and awards and honors held by individual physicians.97 One commentator has concluded that “greater sophistication in the statistical modeling is only a matter of time.”98 As more information becomes accessible to medical consumers, economists hope market forces will eliminate many of the medical errors that current reliance on ex post facto malpractice claims have been unable to prevent.” Because consumers will never have perfect information, examination of all outcomes is not possible, but states are recognizing the value of making outcomes information accessible to medical consumers.100

Although the allure of a market based health care system has caused other nations to emulate its principles in reforming their own health care systems, medical consumers have yet to affect significantly the health care market by flocking to better performing health plans, hospitals, or physicians.101 Barriers to achieving a market health care system include lack of awareness of the available information, difficulty in interpreting the available information, and the inability of many medical consumers to choose their physicians because of insurance restrictions or travel distance.102 Even assuming that quality statistical information on outcomes becomes available, the largest obstacle to a self-regulating health care marketplace remains determining how to make consumers believe that the quality of physicians does vary and how to ensure consumers that they have a choice in selecting a physician.103

Unfortunately, the legal system does not currently protect patients who are attempting to make informed medical decisions based on even the simplest health care quality indicator-a physician’s experience level. Despite Dr. Evil’s deliberate deception in answering Mr. Deville’s inquiry about Dr. Evil’s experience level, state courts have not provided a clear cause of action to hold Dr. Evil liable for his misrepresentations.104

III. Exploring the Approaches of the State Courts105

Most state courts have yet to address Mr. Deville’s situation directly, and the minority of courts that have done so have taken remarkably divergent positions. Perhaps because the emphasis on patients acting as informed consumers has only recently developed, state courts have only decided a few cases similar to Mr. Deville’s situation. Nonetheless, patients like Mr. Deville must be able to rely on the legal system to protect their right to such inquiries.

A. Informed Consent

The first state court to address a doctor’s deceitful responses to patient inquiries upheld a patient’s informed consent action against the doctor.106 In Johnson v. Kokemoor,101 the Wisconsin Supreme Court ruled on whether evidence that a physician had misrepresented his experience to his patient was admissible in an informed consent action.108 The plaintiffs family physician referred her to the defendant, a neurosurgeon, for treatment of her frequent headaches.109 The defendant diagnosed an enlarging aneurysm on Johnson’s brain and recommended surgery.110 During surgery the defendant successfully clipped the aneurysm, but the surgery rendered Johnson an incomplete quadriplegic following the operation.111 Prior to surgery, Johnson specifically asked the defendant about his experience in performing this type of operation; Kokemoor replied that he had performed the surgery “dozens” of times and “lots of times.”112 During discovery, the plaintiff learned that Kokemoor had in fact very limited experience with aneurysm surgery and had never operated on an aneurysm such as the plaintiffs.113 In addition, the plaintiff also introduced evidence that Kokemoor misrepresented the morbidity and mortality rate associated with this type of procedure.114

The Wisconsin Supreme Court began its analysis of the issue by tracing the history of the state’s informed consent doctrine back to Canterbury and the reasonable patient standard.115 The court quoted Canterbury in defining a material risk as occurring when “a reasonable person, in what the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.”116 In rejecting the defendant’s proposed bright line rule that it is error as a matter of law in an informed consent case to admit evidence regarding the physician’s experience, the court stressed that determining what information is reasonable for each patient involves examining the facts and circumstances of each case.117 The facts and circumstances of Johnson’s surgery included evidence that Johnson made direct inquiry of the defendant’s experience and that basilar bifurcation aneurysms are more difficult than any other type of aneurysm surgery and are among the most difficult procedures in all of neurosurgery.”8 In its conclusion, the court cited to the plaintiffs brief, which admitted ” [i]t is a rare exception when the vast body of medical literature and expert opinion agree that the difference in experience of the surgeon performing the operation will impact the risk of morbidity/mortality as was the case here.”119 Thus, the court found that Johnson’s direct inquiries of Kokemoor’s experience together with the unusual complexity of this procedure caused evidence regarding his experience to be material under the facts and circumstances of this case.120

The Kokemoor decision was the first case to discuss the relevance of a physician’s experience to the informed consent doctrine, and the case spurred both criticism and praise.121 After Kokemoor, many plaintiffs and commentators have used the precedent in an attempt to make physician experience part of the mandatory disclosure required in all informed consent cases.122 However, a careful reading of Kokemoor does not support this position. Kokemoor only allows a jury to find a doctor’s experience material under the particular facts and circumstances of this case-the patient directly inquired about his doctor’s experience and experts agreed that because of the complexity of the surgery, physician experience impacted the likelihood of success.123 On its facts, Kokemoor does not stand for the proposition that a doctor whose patient fails to inquire about his physician’s experience level must disclose such information.124 Furthermore, the decision does not even clearly establish that a patient who makes a direct inquiry of his physician’s experience in a less complicated procedure would have a valid informed consent action.125

The most recent case to consider a doctor’s deceitful response to a query about his credentials also found the physician’s misrepresentations to be actionable under informed consent.126 In Howard v. University of Medicine & Dentistry of New Jersey,127 the New Jersey Supreme Court considered the causes of action available when a patient contends that his physician misrepresented his credentials and experience at the time that the doctor obtained the patient’s consent to surgery.128 The plaintiff, Howard, had a history of cervical spine disease, and after he was involved in two automobile accidents, his treating physician referred him to the defendant to consider surgical options.129 Howard had two pre-operative consultations with the defendant before consenting to surgery.130 The plaintiff contended that during the consultation his wife asked Dr. Heary, the defendant, whether he was board certified and how many similar operations he had performed.131 The defendant responded that he was board certified and had performed approximately sixty corpectomies in each of the previous eleven years.132 The surgery was unsuccessful, and Howard filed a malpractice action.133 During discovery, Howard learned that Heary was not board certified and that he had only performed “a couple dozen” corpectomies during his career.134 Based on the new information, Howard unsuccessfully moved to amend his complaint to include a fraud action.135

In examining the issue, the court looked to other state courts that had addressed this issue.136 The court noted that Wisconsin allowed a claim based on lack of informed consent and that although several state courts hinted that a fraud-based claim would be appropriate, none had held to that effect.137 The New Jersey Supreme Court concluded, “The thoughtful decision of the Appellate Division notwithstanding, we are not convinced that our common law should be extended to allow a novel fraud or deceit-based cause of action . . . .”138 Interestingly, New Jersey precedent seemed to support Howard’s fraud cause of action by naming an exception to the rule that any consent by a patient prevents a battery theory; the exception provided, “If consent was obtained by the use of fraud or misrepresentation, an action for battery may be appropriate.”139 The Howard court quickly distinguished this precedent stating that such an exception applies only when the misrepresentation “induced plaintiff to proceed with unnecessary surgery.”140 Because the physician’s misrepresentation in this case may have misled Howard about material information needed to grant an informed consent, the court found, “Stripped to its essentials, plaintiffs claim is founded on lack of informed consent.”141 Other jurisdictions have also used the fact that a misrepresentation related directly to the informed consent inquiry to distinguish precedent supporting a potential battery action.142 Furthermore, the Howard court stressed its reluctance to allow such a claim when the damages from the fraud arise exclusively from the doctor-patient relationship involving the corpectomy procedure.143 The court stated its unwillingness to allow a patient in Howard’s position to pursue punitive damages or to circumvent the proof requirements of both causation and damages imposed by the traditional informed consent action.144

After rejecting Howard’s fraud claim, the court continued its analysis by examining the validity of an informed consent action under these facts.145 The court traced New Jersey’s history of informed consent establishing that New Jersey, like Wisconsin, uses the reasonable patient standard to determine what information a doctor must disclose.146 Unlike the Kokemoor court, the New Jersey Supreme Court explicitly stated that informed consent does not normally include the duty to inform the patient of experience or credentials.147 However, when the plaintiff specifically asks such questions, the court concluded a jury could reasonably find that the physician’s misrepresentation of his experience was a material risk for the patient.148 Directly after admitting the possibility of proving a valid informed consent action, the court continued by pointing out the “difficulty inherent in meeting the materiality standard required in order for physician experience to have a role in an informed consent case.”149 The court explained that a possibility of materiality exists if the defendant’s true level of experience could enhance substantially the risk of paralysis from undergoing a corpectomy; a jury could then find that a reasonably prudent patient would not have consented to the procedure had the physician not misrepresented his experience.150 In addition, the two-pronged causation inquiry necessary for a successful claim will “impose a significant gatekeeper function.”151 Although the New Jersey Supreme Court ultimately reached the same result as Kokemoor, the result for the plaintiff was very different. In Kokemoor the court accepted the plaintiffs proffered cause of action-informed consent; however, in Howard the court rejected the plaintiffs proffered cause of action, fraud, in favor of what the court viewed as the more difficult to prove cause of action, informed consent.152 Therefore, the court stated that Howard’s only valid cause of action would be under informed consent and then explained that he was unlikely to prove such a case.153

Disappointed patient advocates reacted negatively to the court’s rejection of a separate fraud cause of action, calling the ruling disturbing.154 Bruce Nagel, attorney for Howard, commented on the ruling claiming that “[i]t created a shield . . . . It insulates doctors when they lie to patients.”155 Noting the apparent inequitable treatment of medical consumers, Nagel stated, “You can win damages for fraud from a salesman who lied about the capabilities of a refrigerator or a car, but you can’t sue a doctor for fraud when you hire him because he lies about his credentials and you become a quadriplegic.”156 In contrast, Matthew Schorr, the attorney representing the defendant doctor, explained the ruling as “meanfing] physicians can continue defending claims on merits rather than frivolous claims going forward. This decision refocuses the attention on medicine, where it should be.”157 The postcase comments are striking when compared to the Kokemoor outcome because what the Wisconsin Supreme Court viewed as a victory for the plaintiff, lawyers in the Howard case viewed as a devastating defeat to the plaintiff.158

B. Fraud

Although an informed consent action may be available for Mr. Deville in some jurisdictions, he may also have the opportunity to plead a fraud action against Dr. Evil. The fraud cause of action allows a better opportunity for recovery because a fraud action would focus on physicians’ lies, not on their medical abilities.159 The Restatement (Second) of Torts states that consent does not protect against liability for invasion or harm when a person is induced to consent by another’s misrepresentations.160 The physician-patient relationship is a fiduciary one; therefore, the court must judge a doctor’s representations to his patient by the high standard applicable to fiduciaries.161 A doctor’s liability for misrepresentation or failure to state the facts adequately can legally void the patient’s formally expressed consent to a procedure, allowing the procedure to be actionable as an assault and battery.162 Because fraud vitiates the patient’s consent, the claim resembles the early consent cases in which a doctor performed a procedure without any consent.163 This action fundamentally differs from the typical negligence informed consent action that focuses upon the information disclosed. To prove a claim of fraudulently obtained consent, the patient must establish that the physician made a material misrepresentation of fact, knowing it to be false.164 Because fraud vitiates the patient’s consent, a court can charge a doctor with battery after finding the doctor guilty of fraudulently receiving the patient’s consent.165

Although the New Jersey Supreme Court disallowed a patient’s fraud claim, the Wisconsin Supreme Court did not specifically address whether a patient could bring an action in fraud.166 However, in its analysis of informed consent, the court acknowledged the overlap between actions in misrepresentation and informed consent, stating that the “allegations made and evidence introduced by the plaintiff might have fit comfortably under either theory.”167 Thus, Kokemoor’s acceptance of an informed consent action under limited facts and circumstances did not preclude a fraud action.168

Prior to the unanimous decision of the New Jersey Supreme Court, the Appellate Division of the New Jersey Superior Court believed that Howard could bring a valid cause of action in fraud under New Jersey law.’69 The intermediate appellate court compared Howard’s consent to cases involving “ghost surgery,” or when a patient consents to one doctor performing surgery but in reality another doctor performs the operation.170 In a prior New Jersey case involving ghost surgery, the New Jersey Supreme Court allowed a battery cause of action observing, “Even more private than the decision who may touch one’s body is the decision who may cut it open and invade it with hands and instruments …. Few decisions bespeak greater trust and confidence than the decision of a patient to proceed with surgery.”171 In ghost surgery, a battery action is appropriate because the patient never gave consent for the particular surgeon to operate.172 Similarly, the court found that Dr. Heary did not have Howard’s permission to operate because Howard only consented to a doctor of significantly greater experience.173 In essence, the appellate court found that Dr. Heary, in lying about his qualifications and experience, misled Howard about the true identity of the physician who would perform the surgery.174 Therefore, unlike the New Jersey Supreme Court, the Appellate Division did not force Howard to establish the difficult causation standard required by informed consent because it found that Howard had a valid fraud cause of action.175

In Duttry v, Patterson,116 the Pennsylvania Supreme Court expressly rejected the plaintiffs informed consent claim, stating that the proper action would be one of fraud.177 Because the patient did not bring a fraud action against the doctor, the sole issue before the court was whether the lower court erred as a matter of law in determining that a doctor’s misrepresentations regarding his qualifications and experience were relevant to an informed consent claim.178 The plaintiffs family physician had recently diagnosed her with esophageal cancer and recommended that she consult with Dr. Patterson, the defendant, regarding whether she needed surgery.179 During this consultation, Duttry questioned Dr. Patterson regarding his experience in performing the recommended surgery.180 Dr. Patterson told Duttry that he performed this type of procedure approximately once every month. ’81 Relying upon this information, Duttry consented to the surgery.182 Dr. Patterson performed the procedure on June 5,1989, and three days later a leak developed that ruptured necessitating emergency surgery, which eventually led to Duttry developing further complications including permanent damage to her lungs.183

After bringing suit for medical malpractice, the plaintiff discovered that Patterson had in fact only performed the procedure nine times in the preceding five years.184 At trial, Duttry sought to introduce this evidence, but the trial court found the evidence inadmissible because it was not relevant to the informed consent claim.185 The intermediate appellate court reversed acknowledging that a physician’s experience is not normally relevant, but finding that this information is material to an informed consent claim when the particular patient raises specific questions regarding that experience.186

The Pennsylvania Supreme Court began its analysis with a discussion of the informed consent doctrine, noting that the doctrine requires physicians to provide patients with material information necessary to determine whether to proceed with the procedure.187 The court explained that the “material information” the physician must disclose requires that the physician “advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation.”188 Furthermore, the court noted that information particular to the surgeon, rather than information concerning the procedure itself, was generally not relevant to an informed consent claim.189

In refusing to distinguish such precedent on the basis of Dr. Patterson’s intentional misrepresentations in response to his patient’s specific questions, the court noted that the doctrine of informed consent is a limited one focusing only on imparting information relative to the surgery itself.190 The Pennsylvania Supreme Court found the fact that the patient inquired about his physician’s experience irrelevant because the doctrine is based on an objective standard that only requires disclosure of what a reasonable person would want to know; therefore, the court concluded that mandatory disclosure under informed consent “does not shift depending on how inquisitive or passive the particular patient is.”191 In rejecting Duttry’s informed consent action, the court noted that a physician who misleads a patient is not immune from all lawsuits, by noting that “we are merely stating that the doctrine of informed consent is not the legal panacea for all damages arising out of any type of malfeasance by a physician.”192 In cases in which the physician provides inaccurate information regarding his qualifications and experience in performing a procedure, the patient should pursue a cause of action for misrepresentation.193

The decision by the Pennsylvania Supreme Court was largely in accord with the amicus brief submitted by the Pennsylvania Medical Society (PAMS), a nonprofit corporation formed by members of the medical profession to participate in matters of concern to physicians and their patients.194 The brief acknowledged that physicians should allow a patient to question them about issues of concern and that physicians should provide accurate information in response; however, the brief opposed expanding informed consent to cover these issues.195 In opposition to allowing an informed consent claim, PAMS emphasized that informed consent, since its inception in Pennsylvania jurisprudence, has always focused on the surgical procedure at issue, not on the surgeon’s personal characteristics.196 The brief argued that holding physicians liable under the doctrine in response to direct questions about their credentials or personal problems necessarily replaces the objective patient standard with the widely rejected subjective patient standard.197 In explaining the policy concerns of such a limitless obligation, PAMS stated, “Once informed consent is unmoored from its focus on the benefits and complications of surgery, physicians can have no certainty that they are complying.”198 But by remaining focused on the procedure itself, not only can courts more easily administer the standard, but surgeons are able to ensure the simple and accurate conveyance of information about the procedure in a standard manner.199 Because the specific issue of whether a fraud action should exist for Duttry was not before the court, the brief does not state a position; however, PAMS does recognize that other actions against the physician would be proper.200

The Pennsylvania Supreme Court’s rejection of an informed consent action in favor of allowing a fraud suit outraged at least one commentator.201 Brad Rostolsky stated that a doctor cannot obtain a patient’s true consent when the doctor misrepresents information in response to patient inquiries.202 Courts designed the doctrine of informed consent to ensure that doctors disclose all information material to the reasonable patient.203 Because scientific studies consistently show that better surgical outcomes result from physicians who possess greater experience, Rostolsky finds unappealing the court’s refusal to accept that a physician’s experience would concern a reasonable patient.204 Rostolsky found the court’s intimations about a fraud action unsatisfactory because fraud actions, unlike informed consent, have not been “tailored through years of judicial interpretation to address the intricacies of doctor-patient interaction.”205 Thus, at least one commentator finds the rejection of an informed consent action in favor of allowing fraud actions unsatisfactory.

The Dutlry case is particularly interesting today because of new tort reform legislation enacted after the case by the Pennsylvania legislature. The legislation explicitly provides a statutory informed consent action for patients whose physician knowingly misrepresents his or her professional credentials, training, or experience.206 Therefore, the state legislature apparently has also rejected the court’s reliance on common law fraud to protect adequately patients whose doctors misrepresent their credentials or experience.207

In addition to the Duttry case, a few other courts have briefly addressed the issue of whether a physician is liable for fraud by misrepresenting his credentials in dealing with other issues. The United States District Court for the District of Maryland refused to allow a plaintiff to bring an informed consent action under the Federal Tort Claims Act (FTCA) when the claim centered on allegations that a Navy physician misrepresented his experience.208 The FTCA does not waive sovereign immunity for claims involving misrepresentations.209 The court found that “misrepresentations peculiar to the person of the surgeon or physician are just that-misrepresentations-and cannot be brought under the FTCA by recasting them in the guise of a negligence action based on lack of informed consent.”210 Thus, the federal court decided that the patient’s informed consent claim was nothing more than artful pleading to avoid sovereign immunity.211 Additionally, in North Carolina, a man brought an action against his physician for misrepresenting his prior medical experience as it related to performing the surgical procedure.212 Unfortunately, the court failed to reach a final ruling because the defendant was able to prove that the statute of limitations barred the claim.213 Therefore, despite the consideration of a fraud claim by several courts, no court has expressly allowed a fraud action against a doctor misrepresenting his credentials.

C. Consumer Protection Statutes

In addition to pursuing recovery under a common law fraud claim, some states may allow Mr. Deville to pursue a claim under the state’s consumer protection statute covering unfair and deceptive trade practices. Traditionally, these consumer protection statutes exempted the “learned professions,” including physicians, lawyers, and priests.214 However, in 1979, the United States Supreme Court held that no blanket exemption existed to protect these professions under the Federal Trade Commission Act (FTC Act).215 Because states modeled their consumer protection statutes after the FTC Act, some states have attempted to clarify their own statutes in the wake of the Supreme Court ruling.216 A few states responded by specifically excluding the learned professions from coverage by statute.217 In other states, the courts continued to exempt the learned professions because self-regulating boards already governed such professions.218 However, most states have allowed courts to decide on a case-by-case basis whether learned professionals are engaging in trade or commerce subject to state consumer protection statutes.219

The Washington Supreme Court was the first state court to allow a patient to pursue a deceptive trade practices claim against her physician.220 Although several other courts have since allowed such claims, these courts have all struggled with drawing a line between claims relating to entrepreneurial aspects of the medical practice, which a consumer protection statute allows, and claims arising out of a doctor’s negligence, which plaintiffs must bring under a medical malpractice claim.221 All states agree that claims grounded in a doctor’s negligence are properly brought as medical malpractice actions and not deceptive trade practices claims.222 Therefore, whether such states would allow Mr. Deville’s claim depends on whether the court finds a misrepresentation of a doctor’s experience in response to a patient’s direct question to be an entrepreneurial aspect of the practice of medicine.

The Texas Court of Appeals allowed a patient to bring suit under the state consumer protection statute when her doctor made false and misleading statements.223 The court concluded that knowing misrepresentations are not within the plain meaning of negligence and that a plaintiff can bring such claims under the state’s consumer protection act.224 In a previous case, the same court allowed a consumer protection claim against a dentist for exaggerating his expertise in wisdom tooth extraction.225

In contrast, the New York Court of Appeals has taken a narrower view of entrepreneurial activity. The New York court allowed plaintiffs’ claim against the operators of an in vitro fertilization program for misrepresenting success rates and health risks associated with the procedure.226 In dictum, the court emphasized the importance of the plaintiffs’ proof that the defendants had disseminated such false information to the public through promotional materials, advertisements, and slide presentations at seminars.227 The court distinguished these plaintiffs from a victim of deception in a single transaction in which the only parties truly affected by an alleged misrepresentation would be the plaintiff and defendant.228 Therefore, even states that do not exempt physicians from their consumer protection statutes may limit liability to a narrow definition of entrepreneurial activity.

At least two states, Ohio and Pennsylvania, have refused to apply consumer protection statutes to physicians. However, one commentator finds these cases distinguishable from court decisions in other states.229 In Pennsylvania, the court refused to allow a patient to sue her physician for an unsuccessful surgery for weight loss based on the doctor’s statements of probable results.230 Flynn argues that the plaintiff in the Pennsylvania case failed to properly emphasize the entrepreneurial aspects of the practice of medicine and the business aspects of a physician’s statements to his patient.231 Although consumer protection statutes offer plaintiffs another possible cause of action, state application of such statutes to physicians remains uncertain.232

IV. Policy and Analysis

Mr. Deville’s questioning of Dr. Evil prior to his operation is precisely the behavior many commentators and market economists believe can curb the alarming rate of medical error in the American health care system.233 Part III examined the various approaches state courts have taken in response to patients similar to Mr. Deville. This Part analyzes the advantages and disadvantages of adopting a fraud cause of action instead of relying solely on the informed consent doctrine.

Informed consent and fraudulent misrepresentation protect against two different kinds of wrongful acts.234 Commentators praise Kokemoor and its progeny for allowing informed consent to cover the experience and qualifications of surgeons and hope such cases will lead to a new revolution in informed consent.235 Instead of focusing solely upon informed consent, this Note attempts to look at the possibility of using another cause of action under existing tort law that would apply to the specific fact pattern in Kokemoor and its progeny. First, this Part analyzes the benefits of using a fraud action under the mechanics of current tort law. Second, this Part demonstrates through public policy arguments that a fraud action is a more acceptable solution than creating a broader informed consent action.

A. The Principles of Fraud and Informed Consent

Fraudulent misrepresentation is a stand-alone tort that recognizes an action for harms resulting from misinformation even without a showing of physical injury.236 Courts list between four and nine elements of the common law tort, but they agree in substance that the plaintiff must prove (1) an intentional misrepresentation (2) of fact or opinion (as distinct from a promise) (3) that is material and (4) intended to induce and (5) that does induce reasonable reliance by the plaintiff, (6) proximately causing pecuniary harm to the plaintiff.237 Fraudulent misrepresentations relied upon by a plaintiff can also negate consent.238 By voiding the patient’s formally expressed consent to a procedure, fraud allows the patient to bring an action for battery based on an unconsented touching.239 A fraud action properly focuses the court’s decision on whether the physician actually had legal consent to perform the procedure. Courts should judge the act of obtaining consent to a surgical procedure based on the actual interaction between the physician and the patient.240 Therefore, because proof of fraud voids consent, a fraud action prevents a person from obligating herself based on false information and provides a legal remedy to a patient that has a different surgeon than the surgeon she intended to perform the procedure.241

In contrast, the typical informed consent action focuses on whether the information disclosed to the patient was satisfactory. A negligence standard applies to determine whether the physician disclosed all material information about the nature of a proposed procedure.242 Informed consent recognizes patients’ need to weigh the procedure’s risks, benefits, and alternatives.243 Most jurisdictions, either by statute or case law, have attempted to define the necessary disclosures.244 Although states vary as to whether they define the scope of the duty using either a physician or prudent patient standard, both standards rely on a finding that the information is “reasonably” necessary to a patient’s decision to undergo the procedure.245 Although courts have supported a patient’s right to information about the procedure, courts have been much less likely to enforce a patient’s right to information about the surgeon.246 Typical informed consent litigation occurs as a result of doctors’ nondisclosure of information that state law deems necessary as a minimum level of information every patient should know before agreeing to a procedure.247 Courts have not adopted a pure subjective standard because of fears that a patient would always claim that the undisclosed information was so important to her that she would have declined treatment.248 Therefore, the informed consent doctrine’s purpose is to provide standard information to all patients in an attempt to increase patient autonomy.249

Because of the doctrine’s negligence standard, informed consent does not offer adequate protection to a deceived patient whose doctor deliberately provided false answers to patient inquiries.250 Informed consent is not a flexible doctrine. Indeed, Grant Morris criticized the doctrine’s inflexibility stating, “The real concerns of a flesh-and-blood patient are of no concern to the courts if a hypothetical being would not consider them material.”251 Because Mr. Deville’s situation is analogous to the patient who endures a surgical procedure without any consent, a fraud cause of action, which would allow Mr. Deville to bring a battery action, is the most appropriate cause of action. Judge Cardozo’s powerful words apply directly to Mr. Deville’s situation, “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault for which he is liable in damages.”252 Dr. Evil’s misrepresentation voided the consent provided by Mr. Deville and a battery action is appropriate. State courts have recognized liability for battery when the surgeon who performs the procedure is not the surgeon that the patient authorized.253 When a surgeon performs a procedure after misrepresenting his experience, the situation is analogous to “ghost surgery.”254 One commentator noted that these decisions reserve battery “for cases of deliberate, material deviation from the patient’s consent.”255 Mr. Deville’s situation is fundamentally different from the typical informed consent action where a surgeon fails to disclose the required information.256 In addition, a comparison between the causation requirements and the specific injury redressed by informed consent and fraud actions further reveals the inadequacy of an informed consent action under Mr. Deville’s circumstances.

1. Causation

In an informed consent action, even assuming a patient can establish that a doctor withheld information regarding a material risk, two difficult causation questions remain as barriers to the patient’s recovery.257 A plaintiff first must establish injury causation, which requires that the plaintiff prove to the jury that the plaintiffs decision to undergo the procedure resulted in harm that would not have otherwise occurred if the plaintiff had made a different choice.258 Proving injury causation requires conjecture about both what alternate procedure the doctor may have performed and the risks of such an alternate procedure.259 Injury causation exists because courts cannot base negligence damages on deprivation of patient autonomy alone; only physical injuries resulting from an increase in the risk of harm are compensable.260

Arguably, requiring a patient to prove her injury would not have occurred if she had chosen a surgeon with more experience is an unfair burden on the patient. Although studies demonstrate a correlation between doctor experience and success of an operation, such a statistical study may not convince a jury that more likely than not the injury would not have happened had the patient used a different physician.261 Because of the patient’s right to bodily integrity, a patient should be able to choose the risks she takes without regard to whether her choices are more likely than not to prevent an injury. Unlike an informed consent claim, establishing a fraud claim vitiates the plaintiffs consent and allows a battery action for unconsented touching.262 Under a battery theory, the patient may recover all damages resulting from the unconsented touching without a showing of injury causation.263

In addition to proving injury causation, a patient must also establish decision causation to recover successfully in an informed consent action.264 Decision causation requires proving to the jury that a “reasonable patient” supplied with the omitted information would not allow the physician to perform the recommended procedure.265 This objective decision causation rule is unique to medical informed consent cases; in a normal negligence case, establishing the defendant’s breach and its causal role in injuring the plaintiff would be enough.266 After describing decision causation, Dan Dobbs commented, “the rule does not reflect the [normal negligence] causation requirement but imposes some additional and most unusual obstacle.”267 Another commentator has observed that the causation principles of informed consent have mutated “what began as a concern for individual autonomy almost necessarily comes to be subjected to standardizing and oversimplifying criteria that are alien to individuality.”268 Nonetheless, arguments that this “reasonable patient” requirement undercuts the goal of patient autonomy have failed to eliminate the requirement.269

Under a fraud claim, the patient must prove only that she in fact relied upon the misrepresentation.270 Dobbs explains that to prove reliance the patient must prove that she chose the procedure because of, or partly because of, the representation.271 Thus, under a fraud cause of action, the patient’s subjective reliance is sufficient. Therefore, unlike an informed consent action, fraud protects patients who take the initiative to gather information above and beyond the information a “reasonable” patient would deem necessary.

2. Compensable Injury

Informed consent forces physicians to disclose routine information about a pending procedure, but the doctrine does not fully protect individual autonomy.272 Under informed consent, the only injury that constitutes a compensable harm is an adverse medical outcome; informed consent provides no cause of action for a plaintiff whose surgery is successful.273 Because of the generally low level of treatment risks, the vast majority of potential plaintiffs in such a cause of action still cannot litigate because they lack the required injury.274 Requiring an adverse medical outcome fails to protect the patient’s right to personal autonomy over his own body. Medical uncertainty necessitates many choices of patient treatment options, and values outside of medicine shape these decisions.275 Shultz finds that the reasoning behind requiring an adverse medical outcome “reflects a pervasive fear that plaintiffs making such claims will recover when they have not ‘really’ been injured, or that doctors will be held liable when they have not ‘really’ done anything wrong.”276 Although such a policy argument may be applicable to a typical informed consent case, no person can claim that a doctor has not done anything “really” wrong by intentionally deceiving his patient with misinformation. A deceived patient suffers an injury to his personal autonomy rights at the time the surgery occurs because a surgeon other than the one the patient intended to hire is operating on his body. Informed consent fails to protect against such harms.

In contrast, under a fraud action, proof of a physician’s fraudulent misrepresentation allows a patient to bring an action in battery for an unconsented touching regardless of physical injury.277 The battery action better protects patient autonomy because battery actions do not provide physicians a defense based upon the medical outcome.278 The physician is liable for physical harms resulting from the battery, but he is also liable for his impermissible touching that is not physically harmful.279 Because battery is a dignitary tort, the traditional rule allows the plaintiff to recover substantial damages even without proving physical injury or mental distress; nonetheless, in cases involving medical procedures, a jury should also consider the ultimate benefit to the patient in determining the appropriate award.280

In addition, under a battery theory, the jury will also have the discretion to award punitive damages.281 The New Jersey Supreme Court cited the possibility of punitive damages as one of its reasons for denying the plaintiff a fraud cause of action.282 The possibility of awarding punitive damages is not a reason to deny a fraud claim. Punitive damages are only available to the jury when the defendant “has committed quite serious misconduct with a bad intent or bad state of mind such as malice.”283 Punitive damage awards act as a social sanction against physicians.284 The remedy vents community outrage, deters the specific doctor from committing similar wrongs in the future, and deters others in the medical community from engaging in similar misconduct.285 A physician’s fraudulent misrepresentation of his experience in response to a patient’s direct inquiry is behavior that juries should deter. Punitive damages may be the most effective method of ensuring doctors are not misleading their patients.286 Dr. Evil is likely to be confident that Mr. Deville will never discover his true level of experience. Furthermore, Dr. Evil currently knows that even if Mr. Deville were to discover the truth, so long as he successfully performs the operation, no liability will attach as a result of his misrepresentations. The possibility of punitive damages may be the only sufficient deterrent to prevent Dr. Evil from taking this calculated risk.287 The jury never has an obligation to impose punitive damages; they merely have the option in the appropriate situation.288 Therefore, courts should not view the availability of punitive damages as a reason to reject a fraud action.

Furthermore, a battery action allows courts to consider the particular factual issues surrounding the doctor’s misrepresentation at the valuation stage rather than as part of the causation analysis. At least one commentator has argued that difficult problems of uncertainty, prediction, and credibility regarding what would have happened had the physician provided the patient a choice are more appropriately analyzed as questions of valuation.289 Evaluating such questions within the framework of injury valuation rightfully does not question the factual existence of harm to the patient.290 Informed consent ultimately rejected such protection for patients because, “[g]iven the absolute nature of battery, the narrowness of its defenses, and the breadth of its remedies, doctors could end up paying significant damages after providing faultless medical treatment, simply because some minor informational aspect of the consent process was questioned.”291 Nonetheless, jurisdictions retain the battery action against physicians in situations in which a physician has performed a medical procedure without any consent because such grossly inappropriate behavior as operating without consent does not warrant protection.292

Although the negligence standard of informed consent adequately protects the prototypical case, the prototypical case is not representative of all cases implicating an autonomy interest.293 Doctors who misrepresent their experience, credentials, and qualifications are not at risk of unacceptably harsh results. Because fraudulent misrepresentations void consent, a battery action is appropriate for deceived patients.294 Nothing needs to be objectively reasonable about the patient’s inquiry to deserve a truthful answer. The mere fact that the patient believed the information important enough to warrant a specific inquiry prior to the procedure is sufficient to require a truthful response. A fraud action only applies to the physician that actively and intentionally misrepresents the answer to a patient inquiry.

B. Public Policy Favors Fraud Cause of Action

Because the fraud doctrine offers a more reliable action for a patient similar to Mr. Deville, public policy favors adopting this approach. This Subpart focuses on the role of trust in the physician-patient relationship, the cost effectiveness of using a fraud action, and the treatment of other professionals who fraudulently misrepresent their credentials and experience.

1. The Important Role of Trust

Tort law should enforce physicians’ duty to maintain a trusting relationship with their patients. Trust between physician and patient is essential for therapeutic purposes.295 Because of trust, a patient is willing to share confidential and sensitive information, to place confidence in the physician’s medical judgments, and to comply with the physician’s recommended treatment.296 Studies indicate that a correlation exists between the amount of trust patients invest in their physician and positive outcomes in the treatment of patients.297 Most commentators explain this correlation in reference to the placebo effect.298 The placebo phenomenon occurs because of patients’ honest belief that that their doctors are capable of healing them.299 In addition, patients with a greater level of trust in their physicians are less likely to bring malpractice actions.300 One commentator stated, “Trust is the core, defining characteristic of the doctor-patient relationship-the ‘glue’ that holds the relationship together and makes it possible.”301 The recent rise of managed care organizations has created loyalty conflicts between the patient’s best interests and the doctor’s need to control costs.302 Because recent trends are already impacting the trust relationship between physician and patient, tort law must be especially careful to preserve physicians’ responsibility to maintain truthful relationships with their patients. Grant Morris commented, “A patient’s trust cannot be purchased with concealment, subterfuge, or bald-faced lies. It can only be developed through honest communication.”303 Therefore, the legal system should allow patients a cause of action when a physician fails to communicate honestly in response to a patient’s direct inquiries.

The legal system can best encourage honest communication and trust between physicians and patients by providing the patient with legal redress when she proves that her doctor deceived her. The informed consent action frequently fails to do this. However, allowing a patient to bring a battery action because the doctor’s fraud negated consent will serve as an effective deterrent.304

2. Cost-Effectiveness

In the wake of Kokemoor, several commentators have urged the legal system to revolutionize the current informed consent doctrine to include physicians’ experience and other provider-specific comparative statistical data.305 Support for a stricter version of informed consent comes from people who believe market competition can create a safer and more efficient health care system; but critics point out the increased costs of requiring more disclosure.306 Although current studies document that more patients want to know more information about their health care, many patients fail to seek such information because of habit, ignorance, intimidation, lack of economic incentive, and the practice of referrals to designated specialists.307 Because the informed consent doctrine operates under the negligence standard, the doctrine creates standards that every physician should disclose before performing a procedure.308 Any increase in the demands on a physician under informed consent is naturally accompanied by an increase in costs to the health care system.309 Most of this increase in costs results from the additional time required for physicians to communicate with patients.310 Peter Schuck recognizes, “Genuinely probing conversation, which advocates of the law in the books demand, is dearer [in price] still.”311 Schuck also recognizes the costs of expanding the doctrine to extend beyond mere information costs and include largely unquantifiable costs of emotional distress, which the disclosed information might induce because of the inability of many patients to understand, or their desire to remain ignorant.312 Proponents of informed consent argue that disclosure of more information improves the treatment decision by assuring that the patient receives crucial information.313 Schuck asserts that such claims of better informed and more knowledgeable patients are more an anomaly than the norm.314 Hence, in an era of escalating health costs, Schuck argues that expanding informed consent is simply not cost effective.315 Schuck concludes that the incredible costs associated with expanding the doctrine do not justify its limited benefits to a consumer class that currently is not ready to use effectively such information.316

In contrast, banning physicians from misrepresenting their experience to inquiring patients is structurally different from increasing the legal standard regarding what information physicians must routinely provide noninquiring patients. Informed consent has effectively created a baseline of disclosure that every physician must follow before performing a procedure.317 Increasing this baseline to include provider-specific information will not be cost-effective because many patients are not capable of using such information; however, when patients specifically inquire about experience, the courts should provide legal redress if a physician deceitfully misrepresents this information.

The fraud cause of action offers an individualized cause of action to plaintiffs provided that they can prove reliance upon a misrepresented fact.318 A fraud cause of action does not entail the same costs to the health care system as reforming the informed consent doctrine. Indeed, recognizing a fraud cause of action raises the information costs only for those patients who are capable and willing to use such information to make informed decisions. Furthermore, the emotional costs are minimized because patients who specifically inquire about information do not wish to remain ignorant of possible consequences and are likely to be capable of understanding the information. In addition, by protecting patients’ rights to seek further information, a fraud cause of action could also yield a reduction in health care costs by limiting overtreatment and by allowing market forces to control the quality of health care provided.319 As awareness of the startling proliferation of medical errors in the health care marketplace increases, the media and state legislatures have urged medical consumers to protect themselves by becoming better informed.320 Patients who take the initiative to seek this information need protection from the legal system to ensure the information they receive is accurate.

3. Physicians Should Not Enjoy More Protection than Other Professionals

Other professionals face liability for misrepresenting experience. In Florida, a court found a consulting company liable for fraud when the company misrepresented its credentials and its past experience with public offerings.321 Another Florida court found a seller of cement pumping equipment liable for fraud because it represented to the buyer that “it had extensive experience making similar or identical operations” when in fact the company did not have such experience.322 Similarly, the Supreme Court of Alabama allowed the buyer of a swimming pool to sue for fraud when the seller misrepresented the experience of the company in installing pools.323 Most interestingly, the New Jersey Supreme Court, the same court that denied Howard’s claim of fraud against his physician, upheld a fraud action against a residential real estate company for misrepresenting the credentials and experience of the builder constructing homes in a new development.324 State cases routinely allow fraud actions against professions ranging from swimming pool companies to consulting firms.

Courts have generally been wary of allowing patients to bring fraud actions against doctors arguing that plaintiffs should not be able to avoid proving the elements of medical malpractice.325 Courts sometimes find that medical malpractice is the “gravamen” of a fraud claim brought by patients against physicians.326 New York’s Appellate Division recently disallowed a patient’s fraud claim that alleged her doctor made fraudulent promises regarding the results of her foot surgery.327 Because the injuries asserted in her fraud claim were the same as those of her malpractice claim, the court found the fraud claim not to be separate and distinct from medical malpractice and dismissed the action.328 Despite courts’ reluctance to allow claims outside the typical medical malpractice arena, commentators recognize the limitations of informed consent and urge courts to expand the possibilities of patient lawsuits. One treatise concludes its synopsis of informed consent by stating that the “[i]nformed consent doctrine as applied in tort cases can only take us so far in promoting physician-patient communication.”329 Joan Krause further commented, “Traditional informed consent law is simply too fragile, too slender a reed on which to rest the burden of protecting patient informational rights in an era of health care cost containment.”330 Commentators believe state tort law must play a greater role in preserving patients’ rights.331

Courts should not protect a person’s right to choose a swimming pool company based on the company’s experience installing swimming pools more than they protect a patient’s right to choose his doctor based upon the doctor’s experience in performing similar surgical procedures. A patient’s right to control who touches his body demands that tort law provide adequate protection against a surgeon who misrepresents information about his experience or credentials to a potential patient.332 Because a person could bring a fraud action against other professionals misrepresenting their credentials, courts should also allow patients to bring an action for fraud against their physicians.

In addition to recognizing a common law fraud action, state courts should also consider applying unfair and deceptive trade practice laws to physicians. Although only a few states have considered doing so, the majority of those that have were willing to construe ambiguous statutes to cover the entrepreneurial aspects of the practice of medicine.333 The standard of proof for deception under these statutes generally only requires that the plaintiff demonstrate that the business practice has a tendency or capacity to deceive; the plaintiff need not show negligence or intent.334 The standard of proof for unfairness only requires that the plaintiff establish that the business practice offends public policy or is illegitimate and substantially injures consumers.335 Flynn believes that these proof requirements “permit consumers to effectively and successfully confront unscrupulous business practices with relative ease.”336 Permitting the application of consumer protection statutes not only would eliminate much of the judicial paternalism afforded to physicians, but also would help deter physicians from the temptation to compete for patients in an unscrupulous manner.337

V. Conclusion

Despite the movement away from judicial paternalism in medical malpractice jurisprudence, medical error kills more Americans than breast cancer, traffic accidents, or AIDS.338 Informed medical consumers can make a difference in combating medical error. The legal system has thus far been unwilling to respect the importance of informed decision-making by medical consumers. Unless courts begin to recognize a fraud action, patients such as Mr. Deville will frequently be without legal recourse.

Recognizing an informed consent action does not adequately protect a patient’s right to have his physician respond truthfully to questions. Because the informed consent doctrine is a negligence-based action, courts focus their inquiry on an objective standard: Whether the physician has disclosed information sufficient for the ordinary, reasonable patient to make an informed decision concerning treatment. Because the focus of an informed consent inquiry is whether the physician provided adequate disclosure, the doctrine does not offer any recourse to a patient who actively seeks information beyond what a reasonable patient would find necessary to his decision.

In contrast, a fraud action protects medical consumers who actively seek information beyond what a reasonable patient would seek and promotes the recent trend of encouraging informed medical consumers to actively question their physicians.339 A fraud action focuses the court’s inquiry on whether the patient legally consented to have his physician perform the procedure. Such an action protects a patient’s right to actively seek information before agreeing to undergo a surgical procedure. Courts currently recognize a battery action when the surgeon who performs the procedure is not the same surgeon the patient authorized. Similarly, when a doctor misrepresents his level of experience prior to obtaining patient consent, the patient unwittingly will be forced to undergo surgery by a physician that the patient actively sought to avoid in the first place. Courts must recognize a fraud action in this situation because proof of fraud allows the patient to recover for battery if the patient has not provided legal consent to the physician.

In conclusion, this Note advocates the position of the intermediate appellate court of New Jersey.340 A patient who specifically inquires about his doctor’s experience should have a legally enforceable expectation that the physician will respond truthfully pursuant to the doctor’s duty to his patient.341 A fraud cause of action does not focus on the information a physician must disclose to his patient; rather, the action exists because the patient never provided legal consent in the first place.342 Recognizing a fraud action will provide informed medical consumers similar to Mr. Deville with legal recourse against physician deceit.

Heyward H. Bouknight, III*

* J.D. Washington and Lee University School of Law, anticipated 2004; B.A. Furman University, 2001. The author would like to thank Professor David Super for his willingness to help out on short notice. Also, the author would like to thank Benjamin C. Brown for his continuous assistance and encouragement. The author wishes to express his appreciation for Whitney L. Goodwin for her patience and continuous support throughout this entire process. Finally, the author would like to recognize his grandfather, Julian J. Nexsen Sr., who has served as a constant source of encouragement throughout his education and will continue to serve as a role model of an accomplished and well-respected attorney as the author enters the legal profession.

Copyright Washington & Lee University, School of Law Fall 2003

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