Marsingill v. O'malley: the Duty to Disclose Becomes the Duty to Divine

• Jurisdiction: Alaska,United States
• Publication year: 2008
• Citation: Vol. 25

§ 25 Alaska L. Rev. 241. MARSINGILL v. O'MALLEY: THE DUTY TO DISCLOSE BECOMES THE DUTY TO DIVINE

Alaska Law Review
Volume 25, No. 2, December 2008
Cited: 25 Alaska L. Rev. 241

MARSINGILL v. O'MALLEY: THE DUTY TO DISCLOSE BECOMES THE DUTY TO DIVINE

DOUGLAS E. HUTCHINSON ^[*]

Alaska Law Review: Douglas E. Hutchinson, Marsingill v. O'Malley: The Duty to Disclose Becomes the Duty to Divine, 25 Alaska L. Rev. 241 (2008) MARSINGILL v. O'MALLEY: THE DUTY TO DISCLOSE BECOMES THE DUTY TO DIVINEDOUGLAS E. HUTCHINSON

[*]

ABSTRACT

In Marsingill v. O'Malley, the Alaska Supreme Court held that the physician's duty to disclose extends to situations in which a physician has not had an opportunity to examine a patient. This Comment argues that extending the physician's duty to disclose in this way places an unreasonable burden on physicians and that the Alaska Supreme Court was not justified in imposing this duty under the Marsingill facts. Further, the supreme court's rationale for choosing the reasonable patient standard over the reasonably prudent physician standard may be outdated. The reasonable patient standard is based on a fallacy of medical paternalism, is tainted by hindsight bias, and causes physicians to respond negatively in a manner that harms patients. Without legislative intervention, physicians will be forced to inconvenience patients or assume an unreasonable risk.

TABLE OF CONTENTS

INTRODUCTION........................................................ 242

I. THE DUTY TO DISCLOSE AND INFORMED CONSENT IN ALASKA PRE-MARSINGILL................................................. 243

II. UNRAVELING MARSINGILL.......................................... 248

A. Medical Decision Making or Evaluation....................... 248

B. Analysis of Marsingill v. O'Malley.......................... 249

1. Facts.................................................... 249

2. Procedural History....................................... 250

3. Discussion of the Court's Analysis on Imposition of the Duty to Disclose and on the Relevant Standard to Apply... 252 III. CRITIQUE OF MARSINGILL I....................................... 254

A. The Marsingill Court Was Unjustified in Imposing a Duty to Disclose Under the Facts of the Case............. .. 255

B. The Justification for Choosing the "Reasonable Patient" Over One of the Professional Standards May No Longer Be Valid.................................................... 256

1. Medical Paternalism...................................... 256

2. The Objective Reasonable Patient Standard is Tainted by Irremediable Hindsight Bias.............................. 258

3. Negative Behavioral Responses to Imposing the Duty to Disclose Based on the Facts of Marsingill I.............. 258

IV. INFORMED CONSENT IN ALASKA POST-MARSINGILL..................... 261

CONCLUSION.......................................................... 262

INTRODUCTION

Consider the following legal practice scenario: One evening after work, you get a call from a client concerning a document she has just received regarding a matter for which you provided legal service. She provides little detail about the contents of the document, and she asks your advice. You point out the obvious: you cannot give her advice without having an opportunity to evaluate the document and you ask to see it. Your client apologizes for the late call and says she'll take a look at it again and get back to you but only if she thinks it needs your attention.

The next you hear from your client is when you are served with a complaint alleging that you have committed professional malpractice by failing to provide her with enough information to make an intelligent decision regarding her need for legal advice.

Now consider this lawyer-client hypothetical in the context of the physician-patient relationship. After Marsingill v. O'Malley, ^[1] a physician has a duty to disclose the material facts for her patient's decision about whether to seek professional services regardless of the physician's opportunity to evaluate the patient. ^[2] If the patient makes known to the physician that she has decided not to seek the physician's services, the physician has a duty to disclose the potential consequences of that decision. It is for the trier of fact to determine whether the physician provided sufficient information for the patient to make an informed decision about her need to seek the physician's services. ^[3]

Applying the duties of physicians in their relationships with patients after Marsingill to those of the lawyer in our hypothetical would require the lawyer to speculate about the contents of the unseen document, provide legal advice to the client without knowledge of its contents, and advise her of the consequences should the client fail to seek further counsel on the matter. Whether our lawyer provided sufficient information including material risks for an informed client decision will be for the trier of fact to determine. ^[4]

This Comment considers the doctrine of informed consent and more specifically the duty to disclose as it applies to physicians' care in Alaska following Marsingill v. O'Malley. Part I discusses the duty to disclose and informed consent law in Alaska prior to Marsingill. Part II begins with an explanation of the process by which physicians conduct patient evaluations. The balance of Part II discusses the procedural history of Marsingill and considers the Marsingill court's discussion of the duty to disclose and the standard to be used by a jury in assessing the adequacy of a physician's disclosure. Part III first considers the Alaska Supreme Court's discussion of the factors governing the duty to disclose and its selection of the "reasonable patient" standard. Part III then explores physician responses to the decision in Marsingill I and the implication of those responses for patient care. Part IV briefly discusses post-Marsingill case law and concludes with some final thoughts on this unique case.

I. THE DUTY TO DISCLOSE AND INFORMED CONSENT IN ALASKA PRE-MARSINGILL

The central case in modern informed consent jurisprudence is Canterbury v. Spence. ^[5] In Canterbury, the surgeon characterized a scheduled spine operation to the patient's mother as "no more serious than any other operation" and failed to reveal that there was a 1% risk of paralysis attendant with the procedure. ^[6] The patient developed paralysis and eventually filed suit. ^[7] The Canterbury decision established the framework for Alaska's subsequent jurisprudence and stands for five propositions.

First, the fundamental right that every mentally competent adult patient decides the course of her own medical treatment requires physicians to obtain the patient's informed consent prior to performing treatments or procedures that have risks a patient would consider in deciding whether to undergo the treatment or procedure. ^[8] Second, the scope of disclosure is shaped by the patient's material informational needs to make an informed decision, not medical custom. ^[9] Third, the content of the disclosure is determined by what the physician knows or should know to be the informational needs of an ordinary, reasonable person in the patient's position. ^[10] Fourth, there is no need to disclose risks which are already known to the patient such as the inherent risk of infection complicating surgery, risks of which persons of average sophistication are aware, or risks which are immaterial to the decision of whether to undergo the treatment. ^[11] Fifth, in failure to disclose cases, causality is determined objectively based on what an ordinarily prudent person in the patient's position would have decided if properly informed of all significant risks that are known or should be known by her physician. ^[12]

The Alaska Supreme Court first considered informed consent in the 1975 case Poulin v. Zartman. ^[13] In Poulin, the discussion focused on the

Canterbury principle: there must be a demonstrated causal link between the breach of the duty to disclose and the patient's treatment choice in order to recover for "lack of informed consent." ^[14]

In Poulin, the plaintiff's daughter was born premature and required the administration of high oxygen concentrations. ^[15] The child survived but was disabled and blinded by a condition called retrolental fibroplasia (RLF). ^[16] Poulin alleged, inter alia, a breach of the duty to disclose the availability of an alternative method of oxygen therapy for treatment of his child's respiratory distress that would have lowered her risk of sustaining RLF. ^[17] Omission of this disclosure was material because the alternative method of administration reportedly reduced the risk of RLF. ^[18]

The supreme court did not reach the "difficult and complex" question of the scope of disclosure because the record failed to document that, had Poulin known about the alternative, he would have declined the oxygen administration employed by Dr. Zartman. ^[19] Therefore, no causal link between the failure to disclose and the treatment chosen was established. ^[20]

The next year, the Alaska Legislature codified portions of the common law doctrine of informed consent in section 09.55.556 of the Alaska Statutes. ^[21] The statute established three requirements. First, to avoid liability, a health care provider must disclose the common risks and reasonable...