Patient Bill Of Rights
Gautier rushed through the door when I opened it and draped his chesterfield coat over my arms. “Where’s Lapius?” he asked. Before I had a chance to answer, he charged into the living room calling “Simon, Simon, I need your advice.”
To punish his rudeness, I dropped his coat on a chair instead of hanging it up. Lapius was lounging in his smoking jacket, a concession to night visitors. “Another big case, Felix?”
“But of course.” Felix had waxed moustaches which pointed toward his eyes when he was happy or excited and down to the corners of his mouth when he was depressed, which amused Lapius. “I have a windfall, but I want to try it out on you. The patient went into the hospital for surgery on a duodenal ulcer. He was to have a subtotal gastrectomy. In the process, the surgeon pierced the splenic artery and had to remove the spleen. What do you think of that?” he asked victoriously.
Lapius pondered it for a moment, and finally said, “Not much. Is that all, Felix?”
The moustaches drooped. “What do you mean not much?”
“That accident can occur in about five percent of subtotals. It has to be accepted as one of the surgical risks.”
“Precisely. But in order to accept the risk, the patient has to be aware of the risk, yes or no?”
“I guess so, “ Lapius said warily. He felt he was being set up for something.
“Well, Simon, I can see you are not up on your law. In just such a case the California Supreme Court affirmed that the risk can be accepted by the patient only after he has been properly informed. He must sign as informed consent.”
“Patently ridiculous, Felix. How can a surgeon be expected to list all the risks entailed in a procedure. He would have to have well researched, printed forms drawn up for each operation and give the patient a mini course in medicine. You’re not going to drag some poor doctor through the courts on that nonsense, surely?”
“Wrong. I will, and I’ll clean up. The precedent has already been set by the California Supreme Court.”
“Obviously you don’t want my advice, Felix. What do you want me for. An expert witness?”
“Yes. There’s an aspect of the case with which you can help me.”
“Harry,” Lapius turned to me, “fetch me some bourbon if you don’t mind, and help yourself.” Then he turned to Gautier, and said “No,” firmly peering intently at the moustaches to see how Gautier would take the news. They turned down, despite the fact that his face remained impassive.
“But why not, Simon? I’ve got an open and shut case.”
“Because there is no malpractice involved. A ruling like that transcends the profession of medicine. Anybody becomes liable.”
“What do you mean?”
“What the court seems to be saying is that anybody who performs any act on any other person, or who sells him a product, or who renders advice, is liable if the recipient of such service hasn’t been informed of the risked and one of the risks befalls him. For instance, if your client loses his case, and the inference is drawn that he lied, he might be liable to a charge of perjury, in which instance, you would be sued because you don’t have a written statement by him that you informed him of this risk. Or take the example of lovers who have intercourse. They will have to exchange consents, his to say that this act might cause her to become pregnant, and she to say that this act might give him a rash, or worse. Or the armed forces, which advertise that if you join you will become an engineer, or a pilot, or learn how to use a parachute. Nowhere do they inform you that you might get killed or have your leg blown off. So, the armed forces would have to include a statement of informed consent signed by the recruit in the enlistment contract. Or to take a plane, the passenger should sign a statement admitting that he had been properly informed of the risk of a crash, or a hijacking.”
“You are being facetious at my expense, Simon,” said Gautier, eyeing us sipping our drinks.
“I am not, Gautier. I am very serious. I resent your trying to get me involved in this crass legal conspiracy. What would you do if your client, having been duly informed of the risk, decided not to undergo surgery, and his ulcer perforated, crippling or killing him?”
“Nothing, Simon. He had been duly informed.”
“Rubbish, Felix. You’d drag the poor doctor to court screaming that he had frightened the patient into making the wrong decision, that he had exaggerated the risks to 10 per cent instead of five.”
“Simon, quiet down. We can still be friends. As a matter of fact, you can demonstrate your friendship by offering me a drink.”
“Harry,” Lapius said, “take this down. ‘I, Felix Gautier, being of sound mind and body, admit that I have been duly informed that the quantity of bourbon that Simon Lapius is about to serve me may addle my brain and damage my liver. Signed----.’ Sign that, Felix, with Harry as a witness, and you’ll get your drink.”