By Karen B. Corbett, Esq.
All adults, at some point, have or should have undergone a colonoscopy. Colonoscopies are recommended for everyone 45 and older and are the gold standard for colon cancer detection. While most procedures are well tolerated, a common and potentially severe complication of the procedure is a bowel perforation.
A common theme for medical malpractice cases involving colonoscopies are perforation cases. A colonoscopy that results in a perforation is not per se medical malpractice. A bowel perforation is a recognized risk of a colonoscopy. As in all medical malpractice cases, to recover damages, the plaintiff must prove the injury was the result of the surgeon’s departure from the standard of care. When the plaintiff’s case concerns a colonoscopy which resulted in a perforation, the theory of recovery typically focuses on either the surgeon’s technique in performing the procedure or on improper monitoring after the procedure. In other cases, the plaintiff will claim the surgeon did not obtain their informed consent for the procedure.1
Lack of informed consent is a distinct cause of action which is codified under New York’s Public Health Law section 2805-d . To establish a cause of action for malpractice based on a lack of informed consent, a plaintiff must prove:
First, that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives that a reasonable medical practitioner would have disclosed on under the same circumstances.
Second, that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed.
Third, that the lack of informed consent is the proximate cause of the injury.
Insufficient documentation is the biggest obstacle in defending these claims. Documentation regarding informed consent typically includes both notes in the patient’s chart indicating that the procedure and the risks and alternatives were explained to the patient and a signed consent form.
Inevitably, where a patient alleges the malpractice resulted from lack of informed consent, the consent form will become a key piece of evidence in the case. However, the mere fact that the plaintiff signed a general consent form alone is insufficient to justify a case being dismissed.2 In cases where the consent form has been the sole basis for dismissal, the consent form had been specifically tailored to demonstrate the particular patient was aware of the procedure being performed and its risks.
Physicians can create a detailed consent form for each patient which both outlines the consent discussion and documents the recognized risks were explained. One of the more effective consent form formats requires the patient to document each potential complication explained to them. This type of consent form contains a line for each recognized risk of the procedure discussed with the patient. The physician will then use the form as an outline for the consent discussion. The patient is typically asked to initial the form after each potential complication has been explained to them.
When dealing with a patient who is at a higher risk for perforation, it is good practice for the physician to discuss that with patient and to tailor the consent form to reflect the patient is aware they are at an elevated risk. For example, elderly patients and those with colonic diverticular diseases, such as Crohn’s disease, are classified as being at an elevated risk for a perforation.
In sum, the chances of successfully defending a claim for lack of informed consent markedly increase when there is ample documentation that the risks of the procedure were explained to the patient. Physicians are encouraged to copiously document the consent conversation with the patient, and they should feel free to have the patient also document to acknowledge that the risks were explained to them as well.
Partner Karen B. Corbett is an attorney at Martin Clearwater & Bell LLP where she focuses her practice on the defense of medical malpractice matters. For more information, visit mcblaw.com.
Oh, et. al., Medico-Legal Implications for the Colon Perforation During Colonoscopy, Journal of Forensic and Legal Medicine. Vol. 80. May 2021
Godel v. Benjy Goldstein, et al., 155 A.D.3d 939 (2nd Dept. 2017)
MD News December 2021, Long Island Edition