“Harry, what do you think of this? I want to get some of these printed up.” Lapius handed me a rough draft on yellow foolscap. It said:
Dr. ____________________has explained to me the risks of the procedure. I understand them, and willingly undergo the procedure.
“Great. You going into law?”
“Perhaps I should,” he mused. I figured something had gotten him charged up, but since I was trying to finish an article I shut up and went back to my reading. That was always a sure way to egg Lapius on. The one thing he hated was peace and quiet, particularly if I was having it. “The California Supreme Court handed down a landmark decision recently. A patient underwent surgery for a duodenal ulcer and during the procedure the patient suffered a severed artery going to his spleen which caused internal bleeding. Of course the doctor was sued, not for severing the artery and repairing it and removing the spleen, but for failing to inform the patient that this risk is incurred in five per cent of such cases, so the patient could decide whether he wanted to incur the risk. If the doctor failed to operate and the patient died of a perforated duodenal ulcer I guess he might have sued because the doctor didn’t emphasize the risks of not operating.”
“This clearly places a heavy burden on the physician,” I said dreamily. Doctors are being sued from so many sides and for so many reasons that I had learned to accept it as a fact of life, and wasn’t about to get exercised about it. “So I guess the note you’ve drawn up is sort of a disclaimer for the patient prior to surgery. Don’t they have these in all hospitals?”
“Sure, but I thought the doctors should have something like this in their own records, signed not only by the patient but by a witness, presumably a close relative, in the consultation room with the patient.”
“There could be some insidious extensions of this doctrine.”
“How about birth control pills, or the coil. Women come to the office demanding them. They are not without danger. The coil may be the site of infection. On occasion there is a perforated uterus. The pill may cause thrombosis. I think we should get exempted from lawsuits if one of those devices goes wrong. It seems to me to be the same thing.”
"How about husbands and lovers, Simon?” I was getting interested in the possible fall out from this business. “After all, why should they get off scott free. They have relations with the women, which is sort of treatment. The possibility of pregnancy exists. She may decide to go to a neighboring state to have an abortion. Let’s assume something goes wrong. They sue the doctor, right.”
“Why not sue the lover. He caused this to happen. He injected the medication, so to speak, and he’s not even licensed to practice. Or take another instance. After cohabitation a female (or a male) might find herself not only pregnant, but contaminated with a venereal disease. Does she sue her lover? No. But if this same woman goes to a doctor’s office to have a coil inserted and she gets an infection, she sues the doctor. If she goes for artificial insemination and the baby turns out to be malformed, has she grounds for a lawsuit? Has this possibility occurred to her? It seems to me that once you get into informed consent you transcend the boundaries of medicine. Do you sue the fish market if the mercury content in the tuna is too high and he hasn’t told you about it? Do you sue the movie theater if they don’t inform you that the horror picture might induce nightmares in your child, and indeed he has one and breaks his leg? The possibilities are boundless, Simon. I think you should go into law. You can break new ground.” I turned to him. He was immersed in a book.
“Simon, you didn’t hear a work I said.”
“Fortunately not, Harry. You choose to be farcical, and you know I always find that tedious. Pour me a bourbon.”
I handed him the yellow foolscap. “Sign this Simon. Bourbon can addle your brain, and damage your liver. You can have your bourbon after you’ve proved you’ve been properly informed.”