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“Informed Consent” Duty Not Satisfied When Doctor Lies

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Before undertaking any medical procedure, physicians are required to obtain the consent of the patient (except in some limited circumstances, such as medical emergencies). Under American law, it is not enough to simply get the patient’s consent, however. The consent must be “informed”—in other words, the patient must be given sufficient information to evaluate the physician’s recommendations and intelligently give or withhold consent.

Informed consent requires that the patient be given information about the risk of the proposed treatment, the likelihood of success, the available alternatives and the likely result of taking no action. In fact, informed consent requires the physician to provide all the information a reasonable patient would use to evaluate the proposed treatment.

Cloma Duttry thought she was being a good medical consumer when she asked her doctor questions about a proposed operation. The Pennsylvania woman suffered from esophageal cancer. Dr. Lewis T. Patterson, her physician, recommended surgery. Before giving consent, she asked how experienced Dr. Patterson was with this particular kind of procedure. When she asked him how many times he had performed similar surgery, he assured her that he had done the same kind of operation about once a month over a five-year period. In fact, Dr. Patterson had only performed similar surgery five times in the five years before he operated on Mrs. Duttry.

After the surgery Mrs. Duttry developed complications. The surgical site developed a leak which required emergency surgery; later Mrs. Duttry developed Adult Respiratory Disease Syndrome and was unable to continue to work.

Mrs. Duttry sued Dr. Patterson; since Dr. Patterson withheld important information, she argued, her consent was not “informed,” and Dr. Patterson did not have authority to operate. After a trial, the Pennsylvania trial court disagreed and found in favor of Dr. Patterson.

Mrs. Duttry appealed the verdict. She argued that the doctor’s prior experience is important information. Dr. Patterson, on the other hand, argued that there is no requirement that a doctor disclose his or her familiarity with a specific procedure.

The Pennsylvania Superior Court agreed with Mrs. Duttry. By a 2-1 vote, the judges decided that when a patient asks about her doctor’s experience it indicates that the level of expertise is important to that patient in analyzing her choices.

The dissenting judge, like the lower court, pointed to an earlier Pennsylvania case involving the death of a young man. In that earlier case, the doctor who performed the operation was an alcoholic who was not licensed to practice medicine in Pennsylvania; the court nonetheless refused to require disclosure of those facts, saying that such information is personal to the physician and not “germane to surgical or operative treatment.”

The two-member majority in Ms. Duttry’s case disagreed. They noted that a physician must “advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person would consider significant in deciding whether to have the operation.” The mere fact that Mrs. Duttry had asked the question indicated that she thought the Doctor’s experience was a material fact. The case was returned to the trial court so Mrs. Duttry could put on her evidence. Duttry v. Patterson, October 5, 1999.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.